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SPECIAL  REPORT 
OFTHE 
OMBUDSMAN 


Drug  Testing  Procedures  In 
Provincial  Correctional  Institutions 
1988 


Drug  Testing  Procedures  In 
Provincial  Correctional  Institutions 
1988 


DRUG  TESTING  PROCEDURES  IN 


PROVINCIAL  CORRECTIONAL  INSTITUTIONS 


Table  of  Contents 

A:  Background  to  the  Report 2 

B:  Justification  for  Testing 3 

C:  Description  of  Departmental  Program 4 

D:  Description  of  Investigation 6 

E:  Legal  Review 13 

F:  Conclusion 15 

G:  Specific  Recommendations 16 


A:  BACKGROUND  TO  THE  REPORT 


In  response  to  a number  of  complaints  from  inmates  in 
Alberta  Correctional  Centres  about  a new  policy  to  test  urine  for 
illicit  drugs,  I announced,  on  January  27,  1988  that  I would 
investigate  the  testing  on  my  "Own  Motion."  This  means  I 
undertook  inquiries  on  my  initiative  rather  than  in  connection 
with  a specific  complaint  or  complaints. 

In  keeping  with  past  practice  on  Own  Motion  investigations, 
I agreed  to  make  the  report  of  my  investigation  public. 

Two  Alberta  Correctional  Centres,  Fort  Saskatchewan 
Correctional  Centre  and  Calgary  Correctional  Centre  began  using 
Enzyme  Mediated  Immunoassay  Testing  (EMIT)  equipment  on  December 
1,  1987  on  a pilot  project  basis  to  test  urine  samples  from 
inmates  for  contraband  drugs.  Grierson  Centre  in  Edmonton,  was 
also  using  the  same  tests,  but  since  the  investigation  began 
Grierson  Centre  has  been  turned  over  to  Native  Counselling 
Services  and  as  of  April  1,  1988  was  no  longer  considered  part  of 
our  inquiries. 

Following  an  internal  review  within  the  Department  of  the 
Solicitor  General  (which  administers  all  provincial  correctional 
centres)  a decision  was  made  to  expand  the  program  to  Calgary 


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Remand  Centre  and  to  Belmont  Correctional  Centre  in  Edmonton. 


B:  JUSTIFICATION  FOR  TESTING 


At  the  outset,  it  was  necessary  to  establish  that  the 
Department  of  the  Solicitor  General  could  justify  a need  to 
identify  inmates  abusing  drugs. 

The  Department  initiated  drug  testing  partly  in  response  to 
recommendations  contained  in  a report  by  Assistant  Chief  Judge 
C.H.  Rolf  of  the  Provincial  Court  of  Alberta.  The  report  was  a 
result  of  an  Inquiry  under  the  Fatalities  Inquiries  Act,  into  the 
death  of  an  inmate  who  contacted  hepatitis  B through  his  use  of 
illicit  drugs.  In  addition,  the  Department  identified  13  major 
incidents  in  provincial  institutions  in  which  drugs  played  a 
significant  role  within  a 21  month  span  ending  in  December,  1987. 
Included  in  the  summary  were  three  deaths,  a sexual  assault,  an 
assault  on  staff  and  three  disturbances  causing  property  damage. 
Over  and  above  these  major  events,  50  known  cases  of  drug 
overdose  were  recorded  in  the  provincial  correctional  centres  in 
1987.  The  department  can  also  document  drug  abuse  through  other 
means  such  as  records  of  confiscated  drugs  and  drug 
paraphernalia,  records  of  institutional  charges  for  drug  related 
offenses  and  anecdotal  reports  from  staff  and  inmates.  While  the 
use  of  illict  drugs  is  clearly  a serious  problem,  the  number  of 
incidents  must  also  be  considered  in  context.  On  any  given  day 
the  correctional  institutions  house  between  2,200  and  2,300 


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people  and,  including  remanded  individuals,  about  30,000  people  a 
year  go  through  the  system. 

This  information  is  sufficient  to  convince  me  that  drugs  are 
commonly  used  by  inmates  and  that  such  abuse  leads  to  serious 
problems  both  for  the  administrators  of  the  correctional  centres 
and  the  inmates  themselves.  Not  all  inmates  wish  to  be  part  of 
the  drug  culture  and  even  some  of  those  who  are  willing  to  use 
drugs  may  not  wish  to  be  subject  to  the  violence  and  intimidation 
which  at  times  accompanies  drug  use.  In  some  cases  the 
intimidation  extends  beyond  the  prison  walls  as  family  and 
friends  of  incarcerated  people  may  be  pressured  into  smuggling 
drugs  into  the  institution  during  visits. 


C:  DESCRIPTION  OF  PROGRAM 


The  Department  began  a three  month  trial  of  drug  testing 
procedures  on  December  1,  1987.  While  the  official  period  of  the 
"pilot"  ran  out  on  February  29,  1988,  the  institutions  have  since 
expanded  testing  for  drugs.  Drug  tests  are  not  intended  to  be  a 
replacement  for  conventional  controls  such  as  searches  of  inmates 
and  living  quarters,  staff  surveillance  of  chronic  drug  abusers, 
and  inmate  admission  to  drug  awareness  programs. 

Although  some  inmates  were  chosen  randomly  for  drug  testing 
at  the  beginning  of  the  program,  that  practice  has  been 
discontinued  and  at  the  present  time  staff  must  provide  a reason 
for  requesting  that  an  inmate  be  tested.  Inmates  are  given  a 


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sterile  container  and  must  urinate  into  it  in  the  presence  of 
staff  members  of  the  same  sex.  In  some  circumstances  inmates  may 
be  strip  searched  before  they  give  a sample.  Although  in  the  past 
several  inmates  of  the  same  sex  were  strip  searched  in  the  same 
room  at  the  same  time,  strip  searches  are  now  conducted  on  an 
individual  basis.  If  an  inmate  is  unable  to  provide  a sample 
immediately,  12  hours  are  given  to  comply.  Inmates  who  refuse  to 
give  samples  are  charged  internally  with  refusing  to  submit  to 
urinalysis  and  the  penalty  they  receive  is  the  same  as  if  they 
tested  positive.  In  addition,  inmates  may  be  required  to  submit 
to  urinalysis  as  a condition  of  a Temporary  Absence  or  work 
assignment  outside  the  Centre. 

Tests  are  carried  out  using  a Syva  EMIT-ST  (ST  means  "single 
test")  analyzer.  This  testing  is  carried  out  either  by  nursing 
staff  or  non-medically  trained  management  staff,  depending  upon 
availability  within  a particular  institution.  Training  of  the 
staff  in  the  operation  of  the  machine  was  provided  by  the  Syva 
sales  representative. 

Samples  are  kept  in  locked  refrigerators  until  the  analyst 
is  able  to  test  them.  If  the  test  is  negative  the  sample  is 
discarded  and  the  inmate  judged  not  guilty.  If  it  is  positive, 
the  analyst  retests  the  same  sample.  If  the  second  test  is 
positive  the  inmate  is  charged  with  a disciplinary  offence  and 
must  appear  before  the  disciplinary  panel  of  the  Centre. 

Typically,  an  inmate  found  guilty  for  the  first  time  of 
using  drugs  at  Calgary  Correctional  Centre  receives  seven  days 


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disciplinary  segregation  plus  45  days  loss  of  open  visiting 
privileges  and  the  privilege  of  attending  special  events.  At  Fort 
Saskatchewan  such  inmates  receive  seven  days  disciplinary 
segregation  plus  90  days  loss  of  open  visiting  privileges. 
Penalties  for  subsequent  offenses  are  higher.  Repeat  offenders 


typically 

receive  14 

days 

disciplinary 

segregation 

and  an 

indefinite 

suspension 

of 

open  visiting 

privileges . 

After 

finishing 

his  or  her 

time 

in  segregation 

the  inmate 

may  be 

allowed  visits  behind  glass,  instead  of  open  visiting  privileges. 


D:  DESCRIPTION  OF  INVESTIGATION 


In  carrying  out  my  investigation  I was  assisted  by  my  two 
most  experienced  correctional  investigators,  my  solicitor,  and  an 
expert  toxicologist  from  a private  medical  laboratory.  Extensive 
documentation  from  the  Fort  Saskatchewan  and  Calgary  Correctional 
Centres,  Grierson  Centre  and  the  Department  of  the  Solicitor 
General  was  reviewed.  The  investigators  and  toxicologist  examined 
the  written  procedures  on  conducting  drug  testing  and  then 
visited  both  centres  to  review  the  drug  testing  facilities  and  to 
observe  staff  perform  their  function.  Formal  interviews  were 
carried  out  with  19  staff  members  and  2 0 inmates  in  order  to 
ascertain  if  the  procedures  were  in  fact  being  followed  and  if 
they  were,  what  problems  arose.  Individual  files  of  many  inmates 
tested  for  drugs  were  reviewed.  Problems  identified  by  both  staff 
and  inmates  were  identified  and  any  steps  taken  to  resolve  them 


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were  considered.  During  the  investigation  the  Office  of  the 
Ombudsman  continued  to  receive  written  and  telephone  complaints 
about  drug  testing  in  the  two  centres  and  about  drug  related 
problems  in  other  centres.  Information  gained  in  those  contacts 
was  considered. 

Technical  information  provided  to  the  centres  by  Syva,  the 
manufacturer  of  the  EMIT  testing  equipment,  was  reviewed  by  the 
toxicologist  and  solicitor.  Some  points  were  clarified  by  the 
investigators  in  an  interview  with  a Syva  representative.  The 
toxicologist  reviewed  the  most  recent  information  on  drug  testing 
in  medical  and  technical  journals  and  contacted  colleagues  in  the 
field.  He  was  familiar  with  the  Syva  EMIT-ST  machine  used  by  the 
correctional  centre  and  the  company's  sales  and  support  staff 
because  the  laboratory  at  which  he  works  owns  and  operates  a Syva 
EMIT-ST  analyzer.  The  same  laboratory  also  uses  other  varieties 
of  drug  testing  equipment  and  the  toxicologist  was  familiar  with 
the  advantages  and  disadvantages  of  all  of  them  and  was  able  to 
provide  a sound  comparison. 

The  Ombudsman's  solicitor  contacted  knowledgeable  people  in 
the  area  of  drug  testing  in  both  Canada  and  the  United  States  in 
order  to  learn  what  has  happened  in  other  jurisdictions.  Ten 
lawyers  as  well  as  two  people  from  other  Ombudsmen's  offices  were 
interviewed.  Court  judgements  on  the  legality  of  drug  testing 
were  researched  and  current  opinion  in  legal  journals  was 
reviewed.  After  familiarizing  herself  with  existing  legal 
principles,  my  solicitor  studied  the  Alberta  Correctional  Centre 


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policies  with  particular  emphasis  given  to  determining  whether 
they  would  be  acceptable  under  the  Canadian  Charter  of  Rights  and 
Freedoms . 

In  the  course  of  their  inquiries  my  investigators  identified 
several  errors  made  by  staff  in  following  the  existing  procedures 
covering  the  collection,  transportation  and  storage  of  samples 
before  analysis.  My  investigators  found  incidents  of  improper 
labelling  of  sample  bottles,  bottles  left  in  unsecured  settings, 
documentation  unsecured,  improper  supervision  during  the 
collection  of  samples,  no  specific  reasons  given  for  testing,  and 
no  record  of  what  prescription  medication  an  inmate  might  have 
taken.  It  was  established  that  as  time  progressed  and  with  more 
experience  by  the  correctional  staff,  the  number  of  such  mistakes 
has  been  reduced.  The  forms  which  authorize  testing  now  list  from 
the  outset  the  reasons  for  testing  and  what  medication  the  inmate 
may  be  taking. 

My  investigators  were  not  satisfied  that  in  some  instances 
correctional  staff  properly  appreciated  the  necessity  of 
following  prescribed  procedures  when  collecting  samples,  or  even 
knew  all  the  required  procedures.  The  importance  of  maintaining  a 
proper  chain  of  custody  of  evidence  also  did  not  seem  to  be  well 
understood  by  all  staff.  Training  on  how  to  take  urine  samples  or 
maintain  a proper  chain  of  custody  of  evidence  appeared  to  be 
inadequate. 

In  one  instance  several  inmates  were  strip  searched  in  a 
single  room  and  were  not  adequately  supervised  when  they  urinated 


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into  the  sample  bottles.  There  is  circumstantial  evidence  that 
indicates  one  of  the  samples  was  tampered  with  and  as  a result  an 
innocent  inmate  was  found  guilty.  A subsequent  test  the  next  day 
proved  him  not  guilty.  Because  the  first  positive  sample  was  not 
frozen  and  stored  as  it  should  have  been,  it  is  impossible,  at 
this  point,  to  prove  the  sample  had  been  tampered  with.  Because 
several  inmates  were  in  the  room  at  the  same  time,  the 
possibility  also  exists  that  the  samples  were  mislabelled  or 
mixed  up  during  transportation.  This  incident  was  taken  very 
seriously  by  the  department  and  thoroughly  investigated.  As  a 
result  proper  corrective  action  has  been  taken. 

In  another  incident  a chronic  and  heavy  drug  abuser  was 
found  guilty  of  using  drugs  when  he  tested  positive.  After 
consulting  with  the  toxicologist,  it  was  my  opinion  that  the 
inmate  may  have  had  drug  residue  left  in  his  system  well  beyond 
the  normal  time  frame  recognized  by  the  staff  performing  the 
test.  When  the  director  of  the  institution  in  which  the  inmate 
was  housed  was  consulted,  he  agreed,  without  the  necessity  of  my 
office  launching  a formal  investigation  into  that  specific 
matter,  to  reverse  the  guilty  finding. 

The  importance  of  proper  labelling  and  maintenance  of  the 
samples  and  maintaining  continuity  of  evidence,  did  not  appear  to 
be  understood  at  first  and  it  appears  staff  have  sometimes 
ignored  the  necessary  procedures,  if  they  were  aware  of  them  at 
all.  An  example  occurred  as  recently  as  April  when  my  staff 
observed  the  analyzing  of  an  unlabelled  container  that  was  in 


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fact  a plastic  disposable  drinking  glass.  The  glass  was  placed  on 
the  request  form  and  while  it  was  very  unlikely  a mix  up  occurred 
in  this  case,  the  danger  existed.  The  Department  has  now 
introduced  sealed  bottles,  largely  as  a result  of  comments 
already  made  by  my  staff.  If  properly  labelled,  sealed  bottles 
should  ensure  the  right  inmate  sample  is  being  tested  and  that  it 
has  not  been  tampered  with. 

My  office  has  continued  to  investigate  complaints  from 
inmates  found  guilty  of  internal  charges  of  using  drugs  in 
centres  where  the  capability  of  drug  testing  does  not  exist.  One 
example  that  might  illustrate  the  problems  that  arise  in  that 
setting  occurred  when  an  inmate  was  judged  guilty  on  the  basis  of 
standard  sobriety  tests  akin  to  those  requested  at  the  roadside 
by  police  after  they  stop  a driver  suspected  of  drinking.  Other 
indicators  used  to  convict  the  inmate  were  medical  readings  such 
as  blood  pressure,  pulse  and  respiration  rate.  The  inmate 
maintained  his  innocence  and  asked  for  a urine  or  blood  test,  but 
the  centre  could  not  provide  him  with  one.  My  staff  reports  that 
other  inmates  have  also  asked  to  be  tested  in  similar 
circumstances . 

Because  random  testing  was  done  in  the  beginning  of  the 
pilot  program,  many  more  inmates  were  found  innocent  than  guilty. 
Of  the  first  134  tests  at  Fort  Saskatchewan,  89  were  negative. 
Now  that  a reason  must  be  given  before  an  inmate  is  tested,  the 
positive  rate  has  risen  and  is  close  to  50  per  cent.  That  figure 
still  indicates  that  the  EMIT  test  is  proving  large  numbers  of 


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inmates  innocent  who  might  otherwise  have  been  judged  guilty. 

My  investigators  analyzed  a large  number  of  inmate  files  to 
ascertain  if  the  penalties  imposed  on  inmates  have  been 
consistent.  The  penalties  have  been  somewhat  harsher  at  Fort 
Saskatchewan  due  to  the  perception  that  drug  problems  there  are 
more  common  and,  partially  because  of  the  facilities,  more 
serious.  Penalties  there  will  have  to  be  re-evaluated  when  the 
new  Fort  Saskatchewan  Correctional  Centre  is  opened  later  this 
year.  Loss  of  open  visiting  privileges  will  no  longer  be  possible 
at  the  new  institution  because  there  is  no  provision  in  the  new 
centre  for  visits  behind  glass.  Restriction  to  glass  visits  will 
still  be  possible  at  Calgary  Correctional  Centre.  Also,  remand 
centres  and  minimum  security  centres  such  as  Belmont  have 
substantially  different  programs  and  populations.  In  those 
institutions  penalties  have  to  be  appropriate  to  the  setting.  It 
appears  that  penalties  given  out  to  inmates  within  the  same 
centre  have  been  consistent. 

Generally,  the  actual  analysis  and  recording  of  the  results 
is  adequately  performed.  It  is  done  by  medical  personnel  at 
Calgary  Correctional  Centre  and  by  management  staff  at  Fort 
Saskatchewan.  While  the  staff  members  conducting  the  tests  have 
been  sufficiently  trained  to  competently  complete  the  work,  they 
are  not  qualified  technologists.  It  is  the  opinion  of  the 
toxicologist  that  they  may  not  always  be  able  to  correctly 
interpret  results,  resolve  problems  that  arise  with  the 
equipment,  or  recognize  problems.  Technical  support  is  presently 


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given  only  by  the  manufacturer  of  the  EMIT  testing  equipment.  My 
toxicologist  believes  it  more  appropriate  that  a monthly  review 
of  the  work  be  done  by  an  outside  expert.  The  department  has 
since  indicated  it  may  favor  bringing  in  an  outside  expert 
regularly,  but  on  an  unannounced  date.  This  could  meet  the 
toxicologist's  recommendations.  The  toxicologist  would  also  like 
the  present  analysts  to  review  each  other's  work.  Checking  the 
documentation  could  catch  minor  mistakes  such  as  transcription 
errors,  one  example  of  which  was  found  by  the  toxicologist.  That 
particular  error  did  not  have  an  impact  on  the  inmate.  Such 
reviews  would  also  lessen  the  risk  of  test  results  being 
interpreted  incorrectly  due  to  overlooking  relevant  factors  such 
as  prescribed  medication  or  human  error. 

The  toxicologist  also  expressed  concern  that  because  the 
present  staff  conducting  the  tests  have  other  primary  duties, 
there  may  be  occasions  when  they  will  have  trouble  giving  the 
technical  procedures  their  undivided  attention.  He  pointed  out 
that  ideally  such  testing  should  be  conducted  in  a laboratory 
setting  by  qualified  technicians. 

When  the  EMIT-ST  analysis  is  correctly  applied,  experts  rate 
its  reliability  between  95  to  99  per  cent.  While  this  standard 
hardly  provides  irrefutable  evidence,  given  the  risks  of 
incorrect  application  or  interpretation,  it  has  been  the 
conclusion  of  experts  in  other  jurisdictions,  primarily  in  the 
United  States,  that  the  test  is  acceptable  within  the  prison 
setting,  provided  other  supporting  evidence  of  guilt  or  innocence 


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is  available.  Although  the  correctional  centres  are  following 
good  procedure  by  testing  positive  samples  a second  time,  that 
will  only  eliminate  analytical  errors.  A potential  still  exists 
for  false  positive  readings  due  to  reactions  with  other 
substances  in  the  urine.  The  only  way  to  obtain  completely 
reliable  results  is  to  test  the  same  sample  again  using  a 
technology  which  analyses  the  urine  in  a completely  different 
fashion,  like  gas  chromatography  or  mass  spectrometry.  Those 
procedures  are  much  more  expensive. 

E:  LEGAL  REVIEW 


Drug  testing  in  correctional  institutions  should  be  carried 
out  in  a manner  that  accords  with  the  principles  established  in 
the  Canadian  Charter  of  Rights  and  Freedoms.  The  fact  that  a 
person  is  in  a correctional  institution  necessarily  involves  some 
curtailment  of  his  or  her  rights  and  freedoms.  The  issue  of  drug 
testing  in  correctional  institutions  has  only  been  considered  by 
one  provincial  superior  court.  This  decision  is  not  determinative 
in  Alberta.  Therefore,  all  conclusions  are  speculative  and  it  is 
difficult  to  predict  with  certainty  the  way  in  which  a court 
would  decide  the  Charter  issues.  The  most  important  provision  of 
the  Charter  to  be  considered  is  Section  7 which  reads: 

"Everyone  has  the  right  to  life,  liberty  and 
security  of  the  person  and  the  right  not  to 
be  deprived  thereof  except  in  accordance  with 


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the  principles  of  fundamental  justice." 

The  obligation  to  provide  a urine  sample  under  threat  of 
punishment  for  non-compliance  undoubtedly  infringes  upon  the 
right  to  security  of  the  person.  However,  Parliament  can  choose 
to  infringe  upon  the  right  to  security  of  the  person  if  it  does 
so  in  a manner  consistent  with  the  principles  of  fundamental 
justice.  The  Supreme  Court  of  Canada  has  not  set  specific 
guidelines  for  determining  when  procedures  are  in  accordance  with 
the  principles  of  fundamental  justice,  but  has  stated  that  the 
phrase  will  take  on  concrete  meaning  on  a case  by  case  basis  as 
the  courts  address  alleged  violations  of  Section  7.  My 
investigation  indicates  that  some  of  the  present  procedures  are 
unclear  and  could  produce  unfair  or  invalid  results.  My 
solicitor's  review  leads  me  to  believe  that  a court  could  find 
proper  drug  testing  processes  to  be  acceptable  under  the  Charter, 
but  would  find  the  present  procedures  need  revision  in  accordance 
with  the  recommendations  in  this  report  in  order  to  conform  to 
the  principles  of  fundamental  justice. 

In  addition,  Section  8 of  the  Charter  states: 

"Everyone  has  the  right  to  be  secure  against 
unreasonable  search  or  seizure." 

Cases  in  the  United  States  have  held  that  urinalysis 
constitutes  search  and  seizure,  and  my  solicitor's  review  leads 
me  to  believe  that  such  a conclusion  would  likely  be  accepted  in 
Canada.  The  main  question  is  what  constitutes  unreasonable  search 
and  seizure  as  contrasted  with  an  acceptable  search  and  seizure. 


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Given  the  fact  that  inmates  are  in  a controlled  setting  with 
plenty  of  opportunity  for  staff  to  observe  their  behaviour,  it  is 
my  conclusion  that  random  testing  would  be  found  to  be  in 
contravention  of  Section  8 of  the  Charter.  Section  10  of  Alberta 
Regulation  138/77  under  the  Corrections  Act  appears  to  authorize 
random  selection  of  inmates  for  urinalysis  testing  by  stating 
that  an  inmate  may  be  tested  at  such  time  and  in  such  a manner  as 
the  director  may  require.  In  order  to  comply  with  the  Charter, 
the  regulation  would  require  amendment  to  empower  staff  to  demand 
urinalysis  testing  only  when  there  are  reasonable  and  probable 
grounds  to  believe  that  an  institutional  drug  offence  has  been 
committed  or  is  about  to  be  committed. 

F:  CONCLUSION  OF  OMBUDSMAN 

It  is  my  conclusion  that  urine  testing  of  inmates  for 
illicit  drugs  can  be  justified  and,  provided  certain  conditions 
are  met,  such  testing  can  be  made  acceptable  under  the  Canadian 
Charter  of  Rights  and  Freedoms.  Further,  if  properly 
administered,  the  drug  testing  program  will  provide  a fairer, 
more  objective  method  of  identifying  drug  abusers  within 
correctional  institutions  than  has  existed  in  the  past.  While 
there  appears  to  be  no  practical  method  of  eliminating  illicit 
drugs  within  the  correctional  system,  it  is  possible  proper 
application  of  drug  testing  will  decrease  the  violence, 
intimidation,  security,  and  medical  problems  associated  with  drug 


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use.  While  technologies  other  than  EMIT  testing  are  available,  I 
conclude  they  are  prohibitively  expensive,  would  take 
considerably  longer  to  return  the  test  results  and  would  require 
more  qualified  technologists. 

However,  I do  not  believe  the  EMIT  test  results  alone  are 
sufficient  to  convict  an  inmate  of  an  internal  charge  of  using 
drugs,  but  if  secondary  supporting  evidence  can  also  be 
presented,  the  EMIT  test  can  be  a valuable  tool.  Examples  of 
acceptable  secondary  evidence  could  be  the  apparent  impairment  of 
an  inmate,  the  smell  of  marijuana  smoke  in  his  cell  or  the 
finding  of  drugs  or  drug  residue  in  his  living  quarters.  The  fact 
that  50  per  cent  of  tests  are  negative  suggests  to  me  that  many 
inmates  have  been  acquitted  who  might  have  been  found  guilty 
using  the  conventional  sobriety  or  medical  indicators  alone. 
While  those  conventional  methods  continue  to  have  a place,  the 
EMIT  test  is  a step  forward. 

I would  be  concerned  if  the  EMIT  test  replaced  all  existing 
enforcement  and  rehabilitation  techniques,  but  such  is  not  the 
case. 

G:  SPECIFIC  RECOMMENDATIONS 

While  the  Department  of  the  Solicitor  General  has  conducted 
its  own  ongoing  review  of  drug  testing  procedures  and  some  of  the 
recommendations  listed  below  have  already  been  implemented  by  the 
Department,  I recommend  that  the  following  policies  should  be 


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adopted  to  ensure  drug  testing  is  done  as  fairly  as  possible  and 
within  bounds  that  are  acceptable  in  accordance  with  the  Canadian 
Charter  of  Rights  and  Freedoms: 

1.  The  EMIT  test  must  only  be  utilized  if  correctional  staff 
have  reasonable  suspicion  that  an  inmate  is  guilty  of 
using  drugs.  The  grounds  for  suspicion  should  be 
outlined  on  the  form  used  to  request  that  drug  testing 

be  done.  Random  testing  should  not  take  place. 

2 . The  EMIT  test  must  be  supported  by  secondary  evidence  before 
an  inmate  can  be  convicted  of  internal  charges  of  using 
drugs.  Such  evidence  must  be  documented  and  considered 

by  the  disciplinary  panel  in  conjunction  with  the 
results  of  the  test. 

3.  Inmates  should  have  access  to  the  operable  procedures 
covering  the  actual  sample-taking  as  well  as  the 
procedures  which  should  be  followed  to  ensure  a proper 
chain  of  custody  of  the  evidence.  Those  procedures 
should  be  readily  available,  whether  outlined  on  the 
request  form,  in  the  inmate  handbook,  or  through  some 
other  means.  The  inmate  has  the  right  to  be  told  the 
results  of  the  test  in  a timely  fashion,  certainly 
within  24  hours  of  the  test  being  completed.  Technical 
information  on  the  actual  laboratory  test  does  not 


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necessarily  have  to  be  shared  with  the  inmate. 

4.  Once  a sample  is  taken,  it  should  be  put  in  a self-sealing 

bottle,  or  sealed  with  tamper-evident  tape.  The  seal  or 

label  should  list  the  inmate's  name,  number  and  the 
date  and  time  when  the  sample  was  taken.  The  staff  who 
takes  the  sample  should  initial  the  tape  or  seal.  The 
seal  and  label  should  be  affixed  before  the  bottle 
leaves  the  inmate's  presence.  When  the  sample  bottle  is 
received  by  the  analyst  he  should  certify  that  the 
bottle  and  request  form  have  been  received  intact.  The 
analyst  should  also  record  the  time  and  date  of  the 
test. 

5.  Samples  and  request  forms  should  be  kept  in  a secure  setting 

where  they  cannot  be  tampered  with  before  or  after 

analysis,  or  be  available  to  people  who  do  not  have  a 
need  to  have  access  to  the  information. 

6.  The  request  form  should  note  what  medication,  if  any,  the 
inmate  is  taking.  That  information  is  available  from 

the  centre's  medical  staff. 

7.  An  external  quality  control  check  is  needed  to  review  the 
results  and  documentation  on  a regular  basis  to  ensure 
that  all  the  proper  steps  have  been  followed  and  that 


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the  interpretation  of  the  results  is  proper. 
Arrangements  should  be  made  for  expert  advice  other 
than  from  the  manufacturer  of  the  testing  equipment  to 
be  available  in  case  of  unforseen  problems.  If  drug 
testing  becomes  more  prevalent  in  the  future,  it  might 
be  practical  to  set  up  a central  laboratory  and  hire 
qualified  technologists. 

8.  Policies  need  to  be  drawn  up  identifying  how  long  positive 
samples  should  be  stored  and  how  long  it  is  necessary 

to  retain  documentation.  Samples  should  be  retained 
long  enough  to  allow  for  all  appeals. 

9.  Correctional  staff  need  to  be  more  thoroughly  trained  so 
that  they  will  understand  the  importance  of  observing 

all  of  the  procedures.  Standard  operating  policies 
should  be  compiled  in  one  volume  and  copies  should  be 
conveniently  placed  where  they  can  be  consulted  by 
staff. 

10.  Drug  testing,  is  still  relatively  new  and  developments 
throughout  Canada  and  the  United  States  should  be 
closely  monitored  and  any  changes  in  standards  or 
procedures  examined  and  adopted  if  necessary. 


11.  The  following  technical  improvements  should  be  adopted  to 


ensure  accuracy  in  drug  testing: 


a)  Temperature  of  the  refrigerator  in  which  reagents 
(used  by  EMIT  machine  as  a test  medium)  are 
stored  should  be  checked  and  recorded  daily. 

b)  When  reagents  are  prepared,  the  date  and  initials 
of  the  person  preparing  them  should  be 
recorded. 

c)  A second  analyst  should  review  the  documentation 
generated  by  the  original  analyst's  work  on  a 
daily  basis  and  sign  after  having  done  so. 

d)  For  their  own  protection,  staff  should  always  wear 
gloves  when  testing  specimens. 

e)  A cooler,  more  suitable  room  should  be  found  for 
conducting  the  tests  at  the  Fort  Saskatchewan 
Correctional  Centre  until  the  institution 
moves  to  its  new  facility. 


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