Intercepting of Communication

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INTERCEPTION OF
COMMUNICATION



189. (1) [Repealed, 1993, c. 40, s. 10]
(2) [Repealed, 1993, c. 40, s. 10]
(3) [Repealed, 1993, c. 40, s. 10]
(4) [Repealed, 1993, c. 40, s. 10]
(5) Notice of intention to produce evidence - The contents of a private communication that is obtained from an interception of the private communication pursuant to any provision of, or pursuant to an authorization given under, this Part shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of the intention together with
(a)	a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting out full particulars of the private communication, where evidence of the private communication will be given viva voce; and
(b)	a statement respecting the time, place and date of the private communication and the parties thereto, if known.
(6) Privileged evidence - Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
R.S., 1985, c. C-46, s. 189; 1993, c. 40, s. 10.

*Judicial Consideration* -

R v Rodney - Unreported, May 15, 1991, No. CC910259, Vancouver Registry (BCSC) (Butterworths No. 35639)
	- In a voir dire during the trial the principal issue raised was the admissibility of a portion of a telephone call made by the accused from a telephone in the Lower Mainland Regional Correctional Centre where the prisoner was in custody awaiting trial. At the time of the call, Rodney had been in the institution for about six months. In addition to various signs indicating that "all personal calls may be monitored," all prisoners were given two pamphlets upon admission: one was an information guide and the other a copy of the Correctional Centre Rules and Regulations. The guide contained a section which read, in part:

		Privileged

		Phone calls, except to those persons designated as 'privileged' as defined in Correctional Centre Rules and Regulations, may be monitored.

	The Rules provided in part:

		Monitoring of Communications:

		43.1 (1) Where a director or an officer authorized by the director has first advised the inmate that oral communication or telecommunication may be monitored, the director or an officer authorized by the director may monitor such communication between an inmate and another person as the director believes may disclose a threat to the management, operation, discipline or security of the correctional centre.
		One evening the prisoner asked a corrections officer to place a call for him. The guard placed the call then handed the handset to the prisoner who, taking advantage of the long extension cord, took the telephone to a shower stall where he then had his conversation. From some distance away the guard heard the prisoner become agitated or excited and decided that the call should be monitored. He activated the telephone monitoring system and listened to at least part of the conversation and made notes. He subsequently enlarged on these and a full report was handed to the wing's director and ultimately to the RCMP.
		The Crown argued that the evidence was admissible because the prisoner could not have had a reasonable expectation of privacy within the meaning of s189 of the Criminal Code which would otherwise render the evidence inadmissible. Secondly, even if the accused's s8 Charter rights were infringed by the intercept, the evidence should not be excluded on the basis of s24(2) of the Charter as the administration of justice would not be brought into disrepute. The prisoner, on the other hand, argued that the evidence was inadmissible because it failed the precondition test of admissibility set out in s189 of the Code or, alternatively, that the interception infringed his s8 Charter rights and the evidence should therefore be excluded on the basis of s24(2).
		The court held that it is clear that a "person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law". Solosky v R (1980) 50 CCC (2d) 495 at p510. Because prisoners' privacy rights have not been expressly taken away by law, it appears reasonable to conclude that they are entitled to expectations of privacy which vary depending on the circumstances. In Weatherall v Canada (AG) (1987) 59 CR (3d) 247 (FCTD) and Jackson v Joyceville Penitentiary Disciplinary Tribunal (1990) 55 CCC (3d) 50, supra, constitutional challenges to sections of the Penitentiary Service Regulations succeeded because the regulations contained no standards, criteria or circumstances relating to their application for the guidance of staff or prisoners to ensure that their application would not be unreasonable. In neither case was it suggested that the institution did not have power or should not have had the power to intrude on the privacy interests of prisoners where institutional security was concerned. The focus of the reviews was the exercise of those powers. Both cases held that if a rule does not satisfy the standards required by s8 of the Charter it does not matter if the prisoner had notice of it or not.
		It was not disputed on the facts of this case that the prison authorities failed to comply with s189(1) of the Code because there was no prior judicial authorization obtained, nor did either of the parties to the telephone conversation consent to the interception. In light of the Supreme Court of Canada decision in R v Duatte (1990) 74 CR (3d) 281, which held that unauthorized electronic audio surveillance violates s8 of the Charter, the interception of the private oral communication in this case violated the prisoner's s8 right to be secure against unreasonable search and seizure.
		Furthermore, the Court found that even if the prisoner did not have a reasonable expectation of privacy, the manner in which the interception was carried out also offends s8 of the Charter because the rule contains no express criteria for the interception. There must be a balance struck between the public interest in the safety and security of the penal institution and the public interest in recognizing the very limited expectations of privacy which prisoners have. The very limited privacy interest that inmates have with regard to telephone contact with the outside world must not be interfered with except when security interests prevail. The regulations as they presently read provide no standard, guideline or direction for the interception. The power is arguably over-broad in that it is absolute. It can be exercised against all inmates at any time for whatever purpose. There is no need for a guard to establish reasonable and probable grounds and he can act on suspicion or whim. The regulations should be more precise. Prisoners and staff should have some guidance which indicates in a general way when monitoring will occur
		On these facts, the Court found that the interception by the guard did not comply with the criteria outlined in the rule itself. The rule gives the requisite authority to intercept conversations between a prisoner and another "as the director believes may disclose a threat..." The rule requires that the director or a person acting in his capacity have the belief and it is apparently not sufficient if the guard has the belief. There was no evidence that the guard contacted the director or a person acting in his capacity before intercepting the call. The guard acted without jurisdiction and as such the interception was an unreasonable search and seizure within the meaning of s8 of the Charter.
		Having found the s8 breach the Court concluded that the evidence of the intercepted call, containing as it did, incriminating statements, should be excluded on the basis of s24(2) of the Charter as its admission would render the trial unfair and bring the administration of justice into disrepute.



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