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.