Pubdate: Wed, 13 Dec 2006
Source: National Post (Canada)
Copyright: 2006 Southam Inc.
Contact:  http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Adrian Humphreys
Bookmark: http://www.mapinc.org/testing.htm (Drug Test)

PRISON DRUG TEST DOESN'T COUNT, JUDGE RULES

NIK Tests Widely Used By Police

A convict in a maximum-security prison admits that guards found him 
hiding a small bag of white powder down his pants, but convinced a 
Federal Court of Canada judge that, despite tests identifying the 
substance as cocaine, prison officials could not be absolutely 
certain the powder was contraband.

The ruling on the burden of proof needed for prison infractions calls 
into question the standard use of a simple chemical kit to quickly 
test for common drugs -- and sends the inmate back to his cell block 
a prison hero.

On Sept. 11, 2005, guards at Millhaven Institution in Bath, Ont., 
searched the cell of Chol Angou, 22, who is in prison after he and 
some friends donned masks to hold up a London convenience store with 
a shotgun and fled in a stolen van.

In a secret pocket inside the zipper flap on a pair of jeans, guards 
found a small cellophane bag, about one-inch

square, filled with white powder.

A security intelligence officer at the prison conducted a common 
chemical analysis, called a Narcotic Identification Kit (NIK) test.

The test consists of sprinkling a sample of the substance into vials 
containing chemicals known to react in certain ways with street drugs.

It suggested the powder found in Angou's pants was cocaine.

A disciplinary tribunal found him guilty of possessing cocaine and 
fined him $20. He was also charged criminally, to which he pleaded guilty.

Despite that admission in criminal court, he hired Kingston lawyer 
Philip Casey to fight how the prison tribunal system defines its 
level of proof.

"It probably was cocaine but did they have proof beyond a reasonable 
doubt that it was? No, obviously not," said Mr. Casey.

NIK tests are widely used by police and prisons to justify laying 
charges after seizures.

In criminal cases, however, before a charge proceeds to trial the 
substance in question is sent for a formal analysis in a laboratory 
and prosecutors present a certificate of analysis in court.

In what is seen as the less formal structure of institutional 
tribunals, prison officials have generally been satisfied with the 
NIK results. The tribunals have accepted that, as in Angou's case.

Federal Court Justice Carolyn Layden-Stevenson, however, said the 
tribunal's ruling fell short.

She noted the security intelligence officer testified she had no 
information on the likelihood of false positive results with NIK 
tests and the chairman of the tribunal admitted in his decision that 
portions of the test's manual were ambiguous.

Judge Layden-Stevenson ordered a new discipline hearing for Angou and 
told the government to pay his $1,200 in legal fees from the court challenge.

Mr. Casey assumes the ruling will mean that prisons will no longer 
mete out inmate discipline based on a NIK test.

Guy Campeau, a spokesman for the Correctional Service of Canada, did 
not discount that possibility.

"Whenever there is a court decision questioning our procedures or 
practices we definitely review them and make sure we apply the 
necessary changes," said Mr. Campeau.

"We are still reviewing this decision," he said.

Sending samples from each prison infraction for a formal analysis 
would be costly and time-consuming.

"It might be a pain in the ass for the institutions to do that but 
that is not my problem or Mr. Angou's problem -- it is a policy 
issue," said Mr. Casey.

"It is not like the inmates will be running around, having free reign 
with cocaine. I don't think this will mean a slippery slope to chaos 
in the prisons. They do have other avenues," he said.

On that, the Correctional Service of Canada agrees with him.

"We have plenty of other tools to combat drugs in our prison," said 
Mr. Campeau.

The court ruling and its possible implications will likely cheer his 
client and his fellow prison inmates, Mr. Casey said.

"They'll be happy. They don't have a lot to be happy about in there," he said.
- ---
MAP posted-by: Beth Wehrman