94. (1) Subject to subsection (2), the institutional head or a staff member designated by the institutional head may authorize, in writing, that communications between an inmate and a member of the public, including letters, telephone conversations and communications in the course of a visit, be opened, read, listened to or otherwise intercepted by a staff member or a mechanical device, where the institutional head or staff member believes on reasonable grounds

that the communications contain or will contain evidence of

an act that would jeopardize the security of the penitentiary or the safety of any person, or

a criminal offence or a plan to commit a criminal offence; and

that interception of the communications is the least restrictive measure available in the circumstances.

    (2) No institutional head or staff member designated by the institutional head shall authorize the opening of, reading of, listening to or otherwise intercepting of communications between an inmate and a person set out in the schedule, by a staff member or a mechanical device, unless the institutional head or staff member believes on reasonable grounds

that the grounds referred to in subsection (1) exist; and

that the communications are not or will not be the subject of a privilege.

    (3) Where a communication is intercepted under subsection (1) or (2), the institutional head or staff member designated by the institutional head shall promptly inform the inmate, in writing, of the reasons for the interception and shall give the inmate an opportunity to make representations with respect thereto, unless the information would adversely affect an ongoing investigation, in which case the inmate shall be informed of the reasons and given an opportunity to make representations with respect thereto on completion of the investigation.

Judicial Consideration -

R v. Henry - (1987), 10 F.T.R. 176, [1987] 3 F.C. 429, [1987] F.C.J. No.307 (F.C.T.D.)

- Where an inmate challenged the practice of prison authorities who opened an inmate's mail from an attorney, the court was of the view that its task was to determine whether their conduct, whether in compliance with the Directives or not, could be seen as "reasonable" within the sense of section 8 of the Charter. On the facts of this case, the inmate's application was dismissed. The court expressed the view that given that the prescribed treatment of privileged correspondence in letting it enter the penitentiary in an unopened condition can potentially give rise to hazards, it is not unreasonable that the list of those entitled to communicate with inmates by this means is somewhat limited. Further the court was unable to say that the requirement that such correspondence be properly identified on the envelopes is unreasonable.

Schemmann v. Canada (Correctional Service, Deputy Commissioner) - (1997), 125 F.T.R. 252 (F.C.T.D.)

- An inmate applied for judicial review challenging the practice of the institution in requiring inmates to open incoming privileged correspondence in the presence of a Visits and Correspondence Officer to verify that the contents did not include any unauthorized items. The Institution asserted that the examination of inmate correspondence for unauthorized items was necessary to maintain the security and proper administration of the institution. In allowing the application, the court ordered the CSC to forward communications between the inmate and the persons listed in the schedule to subsection 94(2) of the regulations without requiring the inmate to open his privileged correspondence from and to any and all such persons, or show its contents, in the presence of any institutional staff, unless such staff can show and state to him or to an objective third party reasonable and probable grounds for believing that his privileged correspondence contains something which jeopardizes the institution's security or the safety of any person.

R v. Bobier - (1998), 40 W.C.B. (2d) 6, [1998] S.J. No.654 (Sask.Prov.Ct.)

- There had been a suspicion by a correctional officer that the inmate the accused was visiting was dealing drugs within the institution and, as a result, the inmate's telecommunications were then intercepted by correctional authorities pursuant to an authorization issued by the institutional director. Based upon information gained from the intercepted telephone communications, police and corrections authorities had then been waiting for the accused at the time of his next visit. The court held that while the information derived from the intercepted telecommunications might have been authorized for the inmate, if used for very specific purposes under the Act, it was not authorized according to the process required when a private citizen was being investigated by authorities. Thus, it could not be said that any information gathered about the accused through the interception of telecommunications of the inmate was collected lawfully. The regulations provided for searches of visitors when "entering or leaving" a penitentiary but the accused had not been entering or leaving the institution when his telephone conversations were recorded. While the Crown also argued that the posting of warnings in the institution to inmates and visitors that their communications would be monitored meant that the accused should have known his calls could be recorded and gave an implied consent to that interception, the involuntary surrender of privacy rights in a visitor centre of an institution did not represent a consent in the free sense used in the Criminal Code. Moreover, the conversations had been intercepted while the accused was in his private residence, and it strained credibility to suggest that private citizens were forewarned that any conversation they had with an inmate would be monitored by law enforcement officials from any branch of the state.

R v. Williamson - (1998), 123 C.C.C. (3d) 540, 218 A.R. 332, [1998] A.J. No.652 (Alta.Q.B.)

- The court held that the use of the Racal Telephone Monitoring System violated sections 4(e) of the CCRA, section 94 of the Regulations and section 8 of the Charter. Under the Racal system, all inmate telephone calls were recorded. In it's reasoning, the court asserted that CD 575 dealt with the interception of communications related to the maintenance of institutional security. This directive attempted to put into policy the requirements of Regulation 94 under the CCRA. It incorporated aspects of the interception sections of the Criminal Code. Its definition of interception included listening to and taping communications. The Directive contains a specific condition the interceptions may be undertaken if done on a selective basis. It specifies that an interception may only be carried out if it is not reasonable for the inmate to expect the communication to be private, if there is implied consent, or if there is express consent, or if judicial authorization has been granted under the Criminal Code for the purpose of law enforcement involving certain criminal investigations. The decision to monitor requires a finding on reasonable grounds that the communication will contain or contains evidence of a criminal offence and that monitoring is the least restrictive alternative available in the circumstances. The court held that the Racal system violated almost every principle of CD 575. CD 85 related to correspondence and telephone communication. Its policy objective was to encourage inmates to maintain and develop family and community ties through written correspondence and telephone communication consistent with the principles of protection of the public, staff members and offenders. The policy encouraged inmates to use the telephones, as did the ready availability of the telephones for use in the restricted prison environment. The encouragement to use the phones, combined with the failure of the prison to disclose its practice of universal taping, set a trap for the inmates.

95. (1) The institutional head or a staff member designated by the institutional head may prevent an inmate from communicating with a person by mail or telephone if

the institutional head or staff member believes on reasonable grounds that the safety of any person would be jeopardized; or

the intended recipient of the communication, or the parent or guardian of the intended recipient where the intended recipient is a minor, submits a request in writing to the institutional head or staff member that the intended recipient not receive any communication from the inmate.

    (2) Where an inmate is prevented under subsection (1) from communicating with a person, the institutional head or staff member designated by the institutional head, as the case may be, shall promptly inform the inmate, in writing, of the reasons and shall give the inmate an opportunity to make representations with respect thereto.

Nelson v. Canada (Commissioner of Corrections) - (1996), 112 F.T.R. 265, [1996] F.C.J. No.590 (F.C.T.D.)

- The scope of Regulation 95(1) is restricted to specific instances involving specific individuals. That is, the institutional head or staff member may prevent an inmate from communicating: 1) with "a person" by mail or telephone, 2) on "reasonable grounds" that the safety of "any person" would be jeopardized, 3) with an "intended recipient" where that person, or parent or guardian of that person, submits a request in writing that he or she not receive any communication from the inmate. The regulation is silent as to the allowed duration of any prohibition ordered, but, in the court's opinion, in all circumstances it is necessary to set a defined time limit for the operation of the order. The facts of each case will determine the period necessary and reasonable to carry out the purpose for which the order is imposed. In this specific case, where the warden ordered the curtailment and then suspension of an inmate's telephone privileges on the basis that he was suspected of arranging drug deals within the prison, the court allowed the inmate's application for judicial review on the grounds that while the warden had the authority to make such prohibitory orders to protect the security of the penitentiary or the safety of persons, he should have set a defined time limit for the operation of the order.

Corresponding Act: Sections 68-75 General - Living Conditions