Bich, Cotnam, Kalichman

Application for an order of confidentiality, a release and publication ban, and a sealing order. Appeal from a judgment of the Human Rights Tribunal granting in part an application for moral damages ($6,000) and punitive damages ($1,000). Allowed.

While detained in a correctional facility, the victim, a man, was strip searched for visual inspection by a male correctional services officer, who was assisted by a female colleague. The support officer, positioned in a manner that did not comply with the rules of the normative framework applicable to all provincial correctional facilities, was therefore able to improperly glance at the naked victim. The Tribunal found that the victim had suffered discriminatory treatment in respect of the rights enshrined in sections 4, 24.1, 25, and 26 of the Charter of human rights and freedoms (CQLR, c. C-12).

Even though it can be concluded that the victim was the subject of a distinction because he was not treated the same way as the comparable group of his fellow inmates, the respondent has failed to establish that one of the characteristics expressly protected by section 10 of the Charter, in this case sex, was a factor in the differential treatment.

The normative framework applicable to strip searches in Quebec’s correctional facilities appears to comply with sections 24.1, 25, and 26 of the Charter and is not discriminatory on the basis of sex. Moreover, the trial judge found that the victim had certainly been treated differently than female inmates, but also differently than his fellow inmates in the facility, all men, and inmates in general.

In this case, the only conclusion supported by the evidence was that, on the day of the events, the victim, who was not searched outside the view of the support officer, was not treated like his fellow inmates or like all inmates in Quebec’s correctional facilities are and must be treated, but that this distinction cannot be attributed to the protected characteristic of sex. As the respondent has failed to establish that sex was a factor in the differential treatment of the victim, the Tribunal could not find that there was discrimination.

Text of the decision: http://citoyens.soquij.qc.ca