Censorship

Editorial Note - The decision affirmed the decision of Addy J in the Trial Division who held that it was clear that this regulation gives the institutional head of the penitentiary the authority to order censorship of correspondence to the extent considered necessary or desirable for the security of the institution; and that s43 of the Post Office Act, RSC 1970, c P-14 had no application because mail emanating from inmates is not "in the course of the post" until mailed in a mail box or deposited in a post office. Mail addressed to an inmate is no longer "in the course of the post" once it had been delivered to the institution where the inmate resides.

28. In so far as practicable, the censorship of correspondence shall be avoided and the privacy of visits shall be maintained, but nothing herein shall be deemed to limit the authority of the Commissioner to direct or the institutional head to order censorship of correspondence or supervision of visiting to the extent considered necessary or desirable for the reformation and rehabilitation of inmates or the security of the institution.

*Judicial Consideration* -

Solosky v The Queen - (1979) 50 CCC (2d) 495,105 DLR (3d) 745 (SCC), affirming (1978), 41 CCC (2d) 49, 86 DLR (3d) 316, affirming [1977} 1 FC 663, 33 CCC (2d) 21, 73 DLR (3d) 464 (FCTD)
	- A prisoner was denied a declaration that all correspondence between him and his solicitor be declared privileged, and delivered to the addressee unopened. In order for such communications to be privileged they must have as their object the seeking or giving of legal advice with the intention of confidentiality. They are privileged only to the extent that these criteria are met, which cannot be determined until they are opened and read.

Editorial Note - The decision affirmed the decision of Addy J in the Trial Division who held that it was clear that this regulation gives the institutional head of the penitentiary the authority to order censorship of correspondence to the extent considered necessary or desirable for the security of the institution; and that s43 of the Post Office Act, RSC 1970, c P-14 had no application because mail emanating from inmates is not "in the course of the post" until mailed in a mail box or deposited in a post office. Mail addressed to an inmate is no longer "in the course of the post" once it had been delivered to the institution where the inmate resides.
	The decision of the Court of Appeal was appealed to the Supreme Court of Canada and was heard June 13, 1979 and judgment was rendered December 21, 1979, dismissing the appeal. However, Dickson, J for the Court enunciated certain important guidelines regarding the handling of solicitor/client mail as follows:

		"In my view, the 'minimum extent necessary to establish whether it is properly the subject of solicitor-client privilege' should be interpreted in such manner that (i) the contents of an envelope may be inspected for contraband; (ii) in limited circumstances, the communication may be read to ensure that it, in fact, contains a confidential communication between solicitor and client written for the purpose of seeking or giving legal advice; (iii) the letter should only be read if there are reasonable and probable grounds for believing the contrary, and then only to the extent necessary to determine the bona fides of the communication; (iv) the authorized penitentiary official who examines the envelope, upon ascertaining that the envelope contains nothing in breach of security, is under a duty of law to maintain the confidentiality of the communication. Paragraph 7 (c) Directive 219 underlines this point."

	It should also be noted than an application by the Criminal Trial Lawyers' Association of Ontario to intervene in the appeal before the Federal Court of Appeal was dismissed on the basis that no legal right or obligation of the Association was affected by Solosky's action which was personal to him -Unreported, August 23, 1977 FCA No. A-828- 76.
TOP