IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Bacon v. Surrey Pretrial Services Centre (Warden),

 

2012 BCSC 1453

Date: 20121001

Docket: S112427

Registry: Vancouver

Between:

James Kyle Bacon

Petitioner

And

Debbie Hawboldt

The Warden of Surrey Pretrial Services Centre

Respondent

Before: The Honourable Mr. Justice McEwan

Reasons for Judgment

Counsel for Accused:

K. Eldred

Counsel for Respondent:

B. Mackey, T. Callan, S. Webber

Place and Date of Trial/Hearing:

Vancouver, B.C.

January 23, 24, 25, 26,

February 16, 17, 2012

Place and Date of Judgment:

Vancouver, B.C.

October 1, 2012


 

I

[1]             James Kyle Bacon was remanded in custody on April 4, 2009, on charges arising from an event that occurred on October 19, 2007, and is sometimes referred to as the “Surrey Six” homicide case. His remand status relative to those charges has not changed although he was, at the time of this hearing on this ongoing application, incarcerated in a Federal Institution in relation to a conviction on other matters, rather than in the Surrey Pre-Trial Centre.

[2]             This matter goes back to September 11, 2009, when Mr. Bacon issued this petition seeking habeas corpus with certiorari-in-aid, and judicial review concerning his treatment at the hands of the respondent while in the Surrey Pre-Trial Centre.

[3]             The petition was heard in October and November 2009. Judgment had been reserved when, on December 4, 2009, the Crown advised the Court that it had come to light that, contrary to the Crown’s advice at the hearing, the respondent had intercepted and recorded all of Mr. Bacon’s telephone calls to his solicitor between April 6, 2009 and November 27, 2009.

[4]             This prompted a further hearing. Following discussions with counsel this Court appointed an Independent Supervising Solicitor (the “I.S.S.”) to ascertain who had had access to the telephone calls and where the recordings had gone within the computer systems of the respondent and Telus, the company that provided network service to the respondent. There were several more court appearances to address these matters.

[5]             The existing petition was then amended to include these interceptions, in addition to the issues respecting mail handling, visitation rights and treatment that had already been identified. The additional allegations were set out in the amended petition as underlined below:

The Petitioner Applies for an Order:

1.     Declaring that the Respondent has handled the Petitioner’s mail in a manner that is not prescribed by the Correction Act, S.B.C. 2004, c. 46 and Correction Act Regulations, B.C. Reg. 58/2005;

2.     In the nature of mandamus compelling the Respondent to handle the Petitioner’s mail in the manner prescribed by the Correction Act and Correction Act Regulations;

3.     Quashing the Respondent’s decision to restrict the Petitioner’s visits;

4.     Quashing the Respondent’s decision to restrict the Petitioner’s telephone access;

5.     Declaring that the Respondent has intercepted the Petitioner’s telephone communications with counsel in a manner than contravenes section 7, 8, 11(d) & 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 and is not prescribed by the Correction Act and Correction Act Regulations;

6.     Declaring that the Respondent has maintained a system for recording prisoners’ telephone communications that contravenes section 7, 8, 11(d) & 12 of the Charter, and is not prescribed by the Correction Act and Correction Act Regulations;

7.     Enjoining the Respondent from using the present Inmate Call Control System to record prisoners’ telephone communications until such time as the Respondent can satisfy the Court that it is not capable of recording telephone communications where the prisoner has been advised, explicitly or implicitly, that the communication will not be recorded and maintaining recordings of prisoner’s telephone communications for more than 30 days.

8.     Requiring that the Respondent provide the Petitioner with access to a secure telephone line that cannot be monitored for purposes of making privileged telephone calls.

9.     Requiring the Respondent to forthwith deliver into the Vancouver Registry of the Supreme Court of British Columbia any and all computers and data storage media or hardware in the possession or control of the Respondent upon which any communications between the Applicant/Petitioner and his counsel have been downloaded, listed to, or recorded in whole or in part in any way to be held until any and all records of any telephone communications between the Applicant/Petitioner and his counsel can be removed and returned to counsel for the Applicant/Petitioner and an independent forensic examination of the computers can be conducted, the costs of all of which are to be borne by the Respondent.

10.   Requiring the Respondent to forthwith disgorge all copies of any written records regarding telephone communications between the Applicant/Petitioner and his counsel;

11.   For costs in favour of the Petitioner.

[6]             On June 9, 2010, this Court gave its decision on the matters raised in the original petition, that is, those matters set out in paras. 1-4 above. Those reasons are indexed at 2010 BCSC 805. The matters included in paras. 5-10 of the amended petition awaited the final report of the I.S.S. and the petitioner’s further consideration.

[7]             The Court subsequently received that report, and the amended petition was brought back before it on January 23-26, 2012.

II

[8]             The respondent concedes that all of the petitioner’s privileged telephone calls were recorded for a period of some eight months. This occurred up to and including some of the time during which the petition was originally before the Court.

[9]             From a legal perspective it is important to underscore the significance of a breach of solicitor-client privilege. The privilege is more than a rule of evidence: it is a fundamental legal right. In R. v. McClure, 2001 SCC 14 at paras. 22-25 and 27-28 the Supreme Court observed:

22    The solicitor-client privilege began in Canada as a rule of evidence. See R. v. Colvin (1970), 1 C.C.C. (2d) 8 (Ont. H.C.), per Osler J., at p. 13:

Finally, the question of solicitor-client privilege is, in this connection, a troublesome one. On the one hand, no authority should be given carte blanche to search through the files in a solicitor's office in hopes of discovering material prepared for the purpose of advising the client in the normal and legitimate course of professional practice. The privilege, however, is exclusively that of the client and does not extend to correspondence, memoranda or documents prepared for the purpose of assisting a client to commit a crime... .

There can be no sure way of classifying the various types of material in advance and, in any event, it must be remembered that the rule is a rule of evidence, not a rule of property. [Emphasis added.]

23    In time, the status of solicitor-client privilege as a rule was elevated in the common law. See Solosky, supra, per Dickson J., at p. 836:

Recent case law has taken the traditional doctrine of privilege and placed it on a new plane. Privilege is no longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a court room.

This was expanded in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860. Lamer J., as he then was, recognized the implications of Solosky, supra, at p. 875:

The Court [in Solosky, supra] in fact, in my view, applied a substantive rule, without actually formulating it, and, consequently, recognized implicitly that the right to confidentiality, which had long ago given rise to a rule of evidence, had also since given rise to a substantive rule.

24    In Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at p. 383, Wilson J. confirmed that in Solosky, supra, solicitor-client privilege was a "fundamental civil and legal right". Finally, in Smith v. Jones, [1999] 1 S.C.R. 455, Cory J. for the majority stated at para. 45: "solicitor-client privilege has long been regarded as fundamentally important to our judicial system" and at para. 48: "now it has evolved into a substantive rule."

25    The existence of solicitor-client privilege as a fundamental legal right answers little. The solicitor-client privilege must be examined in the context of other types of privileges to demonstrate its unique status within the legal system.

...

27    There are currently two recognized categories of privilege: relationships that are protected by a "class privilege" and relationships that are not protected by a class privilege but may still be protected on a "case-by-case" basis. See R. v. Gruenke, [1991] 3 S.C.R. 263, per Lamer C.J., at p. 286, for a description of "class privilege":

The parties have tended to distinguish between two categories: a "blanket", prima facie, common law, or "class" privilege on the one hand, and a "case-by-case" privilege on the other. The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). Such communications are excluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category... . [Emphasis in original.]

28    For a relationship to be protected by a class privilege, thereby warranting a prima facie presumption of inadmissibility, the relationship must fall within a traditionally protected class. Solicitor-client privilege, because of its unique position in our legal fabric, is the most notable example of a class privilege. Other examples of class privileges are spousal privilege (now codified in s. 4(3) of the Canada Evidence Act, R.S.C. 1985, c. C-5) and informer privilege (which is a subset of public interest immunity).

[10]         The privilege is most important where the person entitled to the privilege is facing criminal prosecution, as noted in Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 at para. 23:

23    In the context of a criminal investigation, the privilege acquires an additional dimension. The individual privilege holder is facing the state as a "singular antagonist" and for that reason requires an arsenal of constitutionally guaranteed rights (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at p. 994). It is particularly when a person is the target of a criminal investigation that the need for the full protection of the privilege is activated. It is then not an abstract proposition but a live issue of ensuring that the privilege delivers on the promise of confidentiality that it holds.

[11]         Moreover, the privilege has larger implications for the entire legal system. It has been said to protect the integrity of the whole law enforcement system. In Lavallee at para. 36 the Court observed:

36    At this stage, the issue is whether the procedure set out by s. 488.1 results in a reasonable search and seizure of documents, including potentially privileged documents, in the possession of a lawyer. Indeed, s. 8 only protects against unreasonable searches and seizures: Hunter v. Southam Inc., [1984] 2 S.C.R. 145. In commenting on the fact that a reasonable search and seizure is permitted under s. 8 of the Charter, Dickson J. stated, at pp. 159-60:

This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.

Since Hunter, this Court has striven to strike an appropriate balance between privacy interests on the one hand and the exigencies of law enforcement on the other. See R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83. Sometimes, however, the traditional balancing of interests involved in a s. 8 analysis is inappropriate. As it was stated in R. v. Mills, [1999] 3 S.C.R. 668 at para. 86, "the appropriateness of the balance is assessed according to the nature of the interests at stake in a particular context, and the place of these interests within our legal and political traditions". Where the interest at stake is solicitor-client privilege -- a principle of fundamental justice and civil right of supreme importance in Canadian law -- the usual balancing exercise referred to above is not particularly helpful. This is so because the privilege favours not only the privacy interests of a potential accused, but also the interests of a fair, just and efficient law enforcement process. In other words, the privilege, properly understood, is a positive feature of law enforcement, not an impediment to it. This was emphasized by this Court in McClure, supra, where Major J., writing for the Court, stated, at paras. 32 and 34-35:

That solicitor-client privilege is of fundamental importance was repeated in Jones, supra, per Cory J., at para. 45:

The solicitor-client privilege has long been regarded as fundamentally important to our judicial system. Well over a century ago in Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.), at p. 649, the importance of the rule was recognized:

The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, ... to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence ... that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation.

...

Despite its importance, solicitor-client privilege is not absolute. It is subject to exceptions in certain circumstances. Jones, supra, examined whether the privilege should be displaced in the interest of protecting the safety of the public, per Cory J. at para. 51:

Just as no right is absolute so too the privilege, even that between solicitor-client, is subject to clearly defined exceptions. The decision to exclude evidence that would be both relevant and of substantial probative value because it is protected by the solicitor-client privilege represents a policy decision. It is based upon the importance to our legal system in general of the solicitor-client privilege. In certain circumstances, however, other societal values must prevail.

However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. [Emphasis added.]

Indeed, solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. Accordingly, this Court is compelled in my view to adopt stringent norms to ensure its protection. Such protection is ensured by labeling as unreasonable any legislative provision that interferes with solicitor-client privilege more than is absolutely necessary. In short, in the specific context of law office searches for documents that are potentially protected by solicitor-client privilege, the procedure set out in s. 488.1 will pass Charter scrutiny if it results in a "minimal impairment" of solicitor-client privilege.

[Emphasis in Lavallee.]

[12]         The authorities are replete with other expressions of the essential role solicitor client privilege plays in maintaining public confidence in the criminal justice system. Inadvertence is no excuse, as the Court noted in Lavallee at para. 49:

49    In the interim, I will articulate the general principles that govern the legality of searches of law offices as a matter of common law until Parliament, if it sees fit, re-enacts legislation on the issue. These general principles should also guide the legislative options that Parliament may want to address in that respect. Much like those formulated in Descôteaux, supra, the following guidelines are meant to reflect the present-day constitutional imperatives for the protection of solicitor-client privilege, and to govern both the search authorization process and the general manner in which the search must be carried out; in this connection, however, they are not intended to select any particular procedural method of meeting these standards. Finally, it bears repeating that, should Parliament once again decide to enact a procedural regime that is restricted in its application to the actual carrying out of law office searches, justices of the peace will accordingly remain charged with the obligation to protect solicitor-client privilege through application of the following principles that are related to the issuance of search warrants:

1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.

2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.

3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.

4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer's possession.

5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents.

6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.

7. If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.

8. The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.

9. Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.

10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public's confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences.

III

[13]         The breaches of solicitor-client privilege in the present case occurred against a background of other breaches of Mr. Bacon’s constitutional rights, mostly intended to isolate him from all contact with the outside world, in a manner that I found to be hazardous to his psychological health and integrity. For many months the only contact he was permitted was with his solicitors. I have described, in my reasons for judgment in the original petition, the wholly inadequate conditions under which solicitor-client contact takes place in the Surrey Pre-Trial Centre and the remarkable disregard, apparently inherent in the very design of the facility, for its purposes as a Remand Centre – that is, as a place where persons presumed to be innocent are to be held safe, on the direction of the court, until they can be brought back for trial. I noted that the right to a fair and public hearing by an independent and impartial tribunal includes the ability to prepare for such a hearing. Above and beyond the other forms of mistreatment to which the petitioner was subjected at the Surrey Pre-Trial Centre, it is now evident that he could not even be assured that solicitor-client privilege had been respected.

[14]         The mandate of the I.S.S. was to find out what became of the recordings, to locate any media through which the recordings might have been stored or copied, and to secure all such material.

[15]         The I.S.S. was assisted by technical advisors who followed the various means by which dissemination of the records might have occurred. In the course of doing so, the I.S.S. took statements from all those people who it appeared might have had access to the recordings.

[16]         The I.S.S. produced a report based on this investigation. The petitioner takes the view that the report raises other questions, including issues of credibility, that would have to be explored before its contents could be taken to be reliable. It was not, however, part of the mandate of the I.S.S. to take matters further than to identify the scope of the potential dissemination and to make the enquiries it did of those who potentially had access to the privileged communications.

[17]         I make no comment on the petitioner’s position except to say that the I.S.S. himself recognized that the enquiry was limited. From this Court’s perspective the fact that solicitor-client calls had been recorded necessitated an enquiry to determine whether they were accessible in the prison system or stored in some manner that made them accessible to others. It was important to ascertain whether individuals who had potentially had access had, in fact, exercised access, and to do what was possible to secure any recordings extant in the system. This was done as a matter of diligence in the face of the known breach of the privilege, and breaches of the Correction Act and Regulation.

[18]         The fact that the petitioner is not presently in the custody of the respondent is essentially a function of the lapse of time occasioned by the need to appoint the I.S.S. and await his report, combined with the petitioner’s evolving circumstances. The respondent submits that because the petitioner is no longer in the respondent’s custody the court ought to decline to rule on the outstanding parts of the amended petition relating to the breach of solicitor-client privilege. The basis upon which the respondent makes this submission is as follows:

(1)     Mr. Bacon is no longer detained at Surrey Pretrial. Since 8 February 2011, he has been incarcerated in a federal penitentiary. This fact is significant when set against the scope of the substantive issues, which are particular to the Petitioner, and the nature of the relief sought, which has largely been effected through voluntary efforts of the Respondent to improve its technical systems and to rectify its mistake.

(2)     The telephone system that handles inmate telephone calls at provincial correctional facilities, including Surrey Pretrial, has been updated to reduce the likelihood of a similar mistake in the future and, as well, to ensure compliance with the Correction Act, S.B.C. 2004, c. 46 (the “Act”) and the Correction Act Regulation, B.C. Reg. 58/2005 (the “Regulation”).

(3)     All known hardware on which recordings of the Petitioner’s Privileged Calls are known to exist has been given into the care of the Independent Supervising Solicitor. The Respondent has, to the best of its knowledge, no copies of any recordings of telephone calls between the Petitioner and Ms. Eldred.

[from the respondent’s submission]

[19]         There are two aspects in this submission. The first is that although the petitioner was, at the time of the second hearing, housed and managed in the Federal Penal system, he remains a remanded prisoner on the “Surrey Six” indictment. There is no doubt that when he is returned from the Federal system he will, in accordance with his remand status, once again fall into the British Columbia pre-trial custodial system given the anticipated time until trial. As long as the warrant remanding the petitioner is extant this Court retains an interest in ensuring that the identified abuses to which he has been subjected will not recur.

[20]         The second is that, at this stage, the Court should forbear any specific address of the issues raised by the breach of solicitor-client privilege, and simply accept the respondent’s submission that appropriate steps have been taken to remedy the problem. Again, I am of the view present circumstances do not preclude the Court from enquiring into the adequacy of those arrangements.

IV

[21]         It is important to remember that a petition for habeas corpus invokes a summary jurisdiction of the court intended to be remedial of unlawful imprisonment or conditions of imprisonment, whether at common law, or in breach of relevant statutes or the Charter.

[22]         The report of the I.S.S. has assisted the Court in assessing the magnitude of the potential dissemination of the calls intercepted in breach of solicitor-client privilege. It has not on its face turned up specific admissions of eavesdropping or other forms of abuse of the communications improperly recorded and stored.

[23]         The petitioner has outlined, in considerable detail, what he views as improbable and inconsistent assertions and suspicious circumstances surrounding the activities of Deputy Warden Steve Phillips, Assistant Deputy Warden Patricia Annesty and others in the employ of the respondent, and their inappropriate liaison with the RCMP. There is no doubt that the contents of some telephone calls were shared with the RCMP without lawful authority, in contravention of Correction Act Regulation, section 15(2). That was clear on the earlier petition. The petitioner submits that there is reason to suspect that privileged calls were also shared.

[24]         The respondent’s submission is that the court ought to take a different view of the evidence. It submits that the court ought to accept the assertions of the respondent’s witnesses at face value, as well as their descriptions of how the telephone system works, which is contrary, in material respects, to the petitioner’s descriptions.

[25]         The petitioner’s evidence was to the following effect:

Every time I have placed a telephone call to Ms. Eldred, whether to her office line or her cellular telephone, I have heard the message, “This call will not be monitored or recorded.”

I have never heard any message telling me that any call that I have made to counsel, including Ms. Eldred would or could be recorded and monitored.

[Fourth Affidavit of James Kyle Bacon
December 16, 2009 at para. 9 and 10.}

[26]         The respondent claims that this is technically impossible. It submits that there can be no breach of the respondent’s privilege or this right under s. 5 of the Charter to be free of unreasonable search and seizure in light of what it refers to as “two facts”:

(1)     It was not a technical option for the ICCS to record the Petitioner’s Privileged Calls without first advising him – and, by 20 January 2009, his counsel as well – that they were subject to being monitored and recorded; and

(2)     The Petitioner – clearly intelligent, experienced with provincial correctional facilities and the ICCS, and having read the sign posted by ICCS telephone at Surrey Pretrial – knew that his telephone calls to counsel were privileged and not subject to monitoring or recording.

[from the respondent’s submission]

[27]         This leads to a submission that the petitioner cannot claim a reasonable expectation of privacy relative to his privileged telephone calls, because he was on notice that the calls were recorded:

154.  As stated at the outset, it cannot be doubted that solicitor-client privilege deserves the greatest respect. Given the above facts, however, it is no longer open to the Court to accept the presumption, apparently implicit to the Petitioner’s argument on s. 8, that the threshold of a reasonable expectation of privacy is met simply in virtue of the privileged nature of his calls. For the reasonableness of the Petitioner’s expectation is put squarely into doubt, if not vitiated entirely, by the Respondent’s technical evidence. If that evidence is true, then the Petitioner knew that his telephone calls to Ms. Eldred should not be – but were – subject to recording and yet took no steps to bring the matter to the attention of the staff at Surrey Pretrial, either directly or by way of his counsel. The Petitioner knowingly decided, that is, to allow his Privileged Calls to be recorded.

[28]         The respondent’s contention is, then, that the petitioner, knowing his privileged calls had been recorded, nevertheless left that out of the catalogue of abuses he complained of in the first petition, and sat through the original court hearing silently, while the Court was erroneously advised that the calls were not recorded. It should be remembered that this practice came to the Court’s attention when counsel for the respondent became aware that what he had been led to believe, and had represented in court, was not true.

[29]         The second part of the respondent’s submission on responsibility for the recordings is even more awkward. She contends that there is no evidence that the unlawful recording came about “other than by inadvertent error” and that the fact that Mr. Phillips was aware that the calls were being recorded in April, May and June, 2009, but did not recognize the gravity of what was occurring was the result of “inadvertence”. By this means, the respondent attempts to place the petitioner’s responsibility in the circumstances, as a person “clearly intelligent, experienced with correctional facilities and the ICCS [the telephone system]”, above that of one of her most senior corrections officers, and one specifically charged with responsibilities relating to the telephone system. It is a remarkable submission.

V

[30]         I have not done justice to the extensive and detailed submissions of the petitioner and the respondent, or summarized more than a sense of the nature of the evidence. I think it unnecessary to say more, however, for two reasons. The first is that there are clear credibility issues on the material which cannot be reconciled without viva voce evidence and cross-examination. These issues could not be determined summarily. The second, which would in any event dictate forbearance, is that if the breach of solicitor-client privilege goes beyond the fact that the calls were recorded, it may bear on issues in the trial of the charges upon which the petitioner has been remanded, and should properly be addressed in that context.

[31]         In saying so, I am to some extent, acceding to an argument the respondent characterized as forum non conveniens:

108.    The practical effect of the Amended Petition is to enlist the Court in the Petitioner’s criminal defence. This amounts to abuse of process, in so far as the Petitioner’s aim is not to seek an efficacious resolution of a live controversy or to clarify his own rights but rather to secure, in this forum, and free of the rigorous evidentiary procedures of the criminal court, findings that might be imported into his criminal trial process.

[from the respondent’s submission]

[32]         This is, however, overbroad, and only partially correct. The question of the effect of the breaches of privilege is clearly a matter for the criminal trial court. The fact that the respondent’s facilities lend themselves to such abuse is a matter that properly falls within the scope of the habeas corpus / judicial review application. In the context of the petitioner’s case the issue is divisible.

[33]         I say so because the respondent’s breach of solicitor-client privilege must be considered in light of the other breaches that were the subject of the earlier hearing and reasons. It appears to be an accident of timing that this breach was discovered after the first hearing, notwithstanding the respondent’s imputation that the petitioner must have known about it all along. Had it been addressed in that hearing there is no doubt that it would have been a feature of the earlier judgment, and been assessed, as one more element of the petitioner’s mistreatment while he was held by the respondent.

[34]         I will not opine on whether such a breach of solicitor-client privilege would, standing alone, constitute cruel and unusual treatment within the meaning of the Charter. The respondent’s position is that the unlawful recordings are neither “treatment” nor “cruel and unusual”, as those terms are understood in the case law. In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at paras. 177-179, Sopinka J., writing for the Court, addressed the general limits of the question as follows:

177   In order to come within the protection of s. 12, the appellant must demonstrate two things: first, that she is subjected to treatment or punishment at the hands of the state, and second, that such treatment or punishment is cruel and unusual. In this case, the appellant alleges that the prohibition on assisted suicide has the effect of imposing upon her cruel and unusual treatment in that the prohibition subjects her to prolonged suffering until her natural death or requires that she end her life at an earlier point while she can still do so without help. In my opinion, it cannot be said that the appellant is subjected by the state to any form of punishment within the meaning of s. 12. The question of whether the appellant is subjected to “treatment”, however, is less clear.

178   The degree to which “treatment” in s. 12 may apply outside the context of penalties imposed to ensure the application and enforcement of the law has not been definitively determined by this Court. In R. v. Smith, [1987] 1 .S.C.R. 1045, in which this Court struck down the minimum seven-year sentence for importing narcotics, Lamer J. (as he then was) referred to the lobotomisation of certain dangerous offenders and the castration of sexual offenders as examples of “treatment” which would be contrary to s. 12 as opposed to punishment. Even granting that there may be a distinction in purpose between punishments such as imprisonment or lashings, which involve the convicted person paying his debt to society for the wrong he has committed, and the examples of treatment offered by Lamer J. which are arguably primarily concerned with protecting society from the offender, I would note that these treatments are still imposed by the state in the context of dealing with criminal behaviour.

179   In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, this Court suggested that s. 12 may have application outside of the criminal context. In that case, I found, for the Court that the deportation order at issue was not a punishment for any particular offence, but that:

Deportation may, however, come within the scope of a "treatment" in s. 12. The Concise Oxford Dictionary (1990) defines "treatment" as "a process or manner of behaving towards or dealing with a person or thing...." It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized ... is not cruel and unusual.

[35]         The petitioner for his part relies on Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at paras. 95-98, per McLachlin C.J.

95     The question at this point is whether the extended detention that may occur under the IRPA violates the guarantee against cruel and unusual treatment under s. 12 of the Charter. The threshold for breach of s. 12 is high. As stated by Lamer J. [as he then was] in Smith, treatment or punishment is cruel and unusual if it is "so excessive as to outrage [our] standards of decency": R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1067; also R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4.

96     The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual. (The same may be true of onerous conditions of release that seriously restrict a person's liberty without affording an opportunity to challenge the restrictions.) Conversely, a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual: see Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.), per Rothstein J. (as he then was).

97     Mr. Almrei's first submission is that "the combination of the legislative scheme and the conditions of detention ... [transforms] the Appellant's detention into one that is cruel and unusual". I would reject this submission. This Court has not, in its past decisions, recognized s. 12 as a mechanism to challenge the overall fairness of a particular legislative regime.

98     More narrowly, however, it has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release may cause psychological stress and therefore constitute cruel and unusual treatment: [Soering v. United Kingdom (1989), 11 E.H.R.R. 439 (ct.)], at para. 111; compare Lyons, at pp. 339-41. However, for the reasons that follow, I conclude that the IRPA does not impose cruel and unusual treatment within the meaning of s. 12 of the Charter because, although detentions may be lengthy, the IRPA, properly interpreted, provides a process for reviewing detention and obtaining release and for reviewing and amending conditions of release, where appropriate.

[36]         The petitioner submits that the state action of intercepting privileged telephone communications clearly “violates accepted norms of treatment,” because it is an indictable offence to do so without lawful authority.

[37]         The petitioner makes the following further submission:

79.    The Deputy Warden admits direct knowledge that Mr. Bacon’s solicitor-client telephone calls were being recorded. By his own evidence, he did nothing to notify Mr. Bacon or his counsel of the breach. He did not notify any other Corrections staff or take any steps on his own to ensure that no further solicitor-client conversations were recorded. By his own evidence, the violation of Mr. Bacon’s solicitor-client privilege was of no moment to him. The Petitioner submits that his attitude from a Corrections official, who was responsible, not only for monitoring inmate communications at Surrey Pretrial but for the implementation of the ICCS province-wide, violates accepted norms of treatment, shocks the conscience, and outrages standards of decency.

[from the petitioner’s submission]

[38]         These observations come closer to the heart of the matter, in the circumstances of this case, than problematic attempts to describe the interception of telephone calls, standing alone, as “treatment” that is “cruel and unusual.” Rather, taken together with the other forms of clearly unlawful treatment to which the petitioner had been subjected, the interception of privileged telephone calls is an aspect of the respondent’s manifold disregard of the petitioner’s rights. In paragraphs 343 and 344 of the earlier Reasons, I made the following observations:

[343]    The issue of a Warrant of Committal is intended to place a person in the petitioner's position under the protection of judicial authority until he or she can be dealt with at law. The even-handedness required throughout judicial proceedings is required alike of those who hold such inmates pending trial. This responsibility has been officially undermined by whoever in the responsible Ministry has facilitated post-Warrant remand to the police for the purpose of unlawfully extending their investigative opportunities. The exigencies permitting such remands have been artificially created, and the substitution taken as an occasion for abuse of the police power of detention. The wholesale integration of the police thereafter into the respondent's decision-making about the specific treatment of the petitioner, for the purpose of protecting and enhancing the police case against him, is a serious violation of the respondent's proper mandate. The respondent's lack of transparency on "security" grounds, the obstruction of counsel's inquiries, and her, or her agents', lack of candour with the Court suggest a sense of exception from, rather than integration into, a continuum of respect for due process, and for the humanity of the individual, that should start at arrest and characterize the treatment of all persons whose liberty is restricted by law, regardless of the nature of the crime alleged or ultimately proved against them.

[344]    The deplorable physical conditions described by Prof. Haney, the unlawful deprivations, and the institutional lack of concern for the physical and psychological harm occasioned by those deprivations, suggest an institution operated in a manner at serious odds with its purposes.

[39]         The Court’s disapprobation would only have been stronger had the breaches of solicitor-client privilege been known.

[40]         At paragraphs 352-354, in the Summary of Relief (paras. 346-355), I said the following, to which I would add the passages underlined, in light of what is now known:

[352]    The evidence establishes that the respondent has exercised the powers vested in her:

(a) for the improper purpose of assisting the police in its criminal investigation;

(b) in a manner that has improperly fettered her discretion by allowing the police to unduly influence the petitioner's placement in separate confinement; and

(c) in such a way that she has repeatedly breached her duty of procedural fairness and natural justice by failing to hold hearings and preventing the petitioner from making submissions to challenge the information which she relied upon in treating him as she did; in frequently acting on no information or on information she had not assessed because it had not been supplied; and in failing to provide reasons for her decisions beyond the inadequate conclusory self-assessment that whatever she did, her grounds were "reasonable."

(d) to unlawfully record solicitor-client communications.

[353]    The respondent is in breach of s. 12 of the Charter in arbitrarily placing the petitioner in solitary confinement, in failing to appropriately mitigate his circumstances in solitary confinement, and in unlawfully denying him the other rights to which he was entitled, including the interception of solicitor-client telephone calls, significantly threatening his psychological integrity and well-being. These impositions collectively amount to cruel and unusual treatment.

[354]    The respondent is in breach of s. 7 of the Charter by creating circumstances and maintaining the petitioner in circumstances that manifestly threaten the security of his person (which includes both a physical and a psychological dimension) by the unlawful deprivation of his rights for an unlawful purpose. The breach of solicitor-client privilege is an aspect of this threat.

[41]         In other words, I consider that the denial of rights referred to in paras. 352-354 should now include the established breaches of solicitor-client privilege in the recording of the telephone calls. Within the context of the other breaches in this case I am of the view that depriving the petitioner of the security of knowing that he could communicate in confidence to his solicitor, would tend to abet the otherwise cruel and unusual treatment to which the petitioner was subjected, and the threats to his psychological integrity. In saying so, I do not find that he, in fact, suffered that form of psychological distress. He says he had been led to believe that his calls were not recorded, and therefore he cannot complain of distress caused by something of which he was unaware. Should he return to the institution during his current remand, however, this would be a very significant concern. In the deprived circumstances of even a lawfully managed remand centre, inmates must not suffer the insecurity of worrying that their privileged calls might be recorded.

VI

[42]         This gives rise to the questions of whether there should be a remedy in the circumstances.

[43]         It is the respondent’s position that a remedy is not required because the respondent has already implemented measures to improve the telephone system in the Surrey Pre-Trial Centre. These changes are described in the submission as follows:

74.    The Corrections Branch has improved the ICCS [the Inmate Call Centre System] and carried out additional training in order to ensure compliance with the Act and the Correction Act Regulation and to minimize the likelihood that privileged telephone calls to counsel might be recorded in the future. (emphasis added.)

(1)     The number and power of users of various levels have been greatly limited. Only four users in the Province now have “global” access to telephone number options. The remainder of the users are limited to managing telephone numbers at the “local” level, that is, in relation to their own correctional facility.

(2)     The telephone numbers of every lawyer listed in the 2008 directory of the Law Society of British Columbia are being or have been entered into the ICCS and marked “Privileged” at the global level. As entries at the global level supercede those made at the local level, calls to these numbers will not be recorded even if they are not marked “Privileged” at the local level.

(3)     Training is being or has been conducted for all users of the ICCS across the province. The training covers the definition of privileged communications, disclosure of communications, the requirements of s. 8 of the Charter, and relevant sections of the Adult Custody Policy concerning types of calls that can be made, call blocking, call monitoring, and access to and dissemination of records. It also includes components targeted at users with global access and at standard operating procedures for local correctional facilities.

(4)     As noted above, the ICCS no longer retains calls for more than 30 days.

(5)     Finally, as a result of a computer refresh across the Corrections Branch between 31 July and 28 October 2009, each correctional facility now retains only one computer able to run the DRS software used to access recorded telephone calls, and use of that computer is limited. The hard drives of the other retired computers had their hard drives removed and drilled on site prior to disposal.

First Affidavit of Michael Cook, sworn 20 January 2010 at paras. 20-41 [Tab 63, C.B.]

First Affidavit of Fred Stratton, sworn 14 December 2009 at para. 13 [Tab 64, C.B.]

75.      In addition, the Respondent has previously offered to make telephone lines not connected to the ICCS, located in a room or an area affording sufficient privacy, available to the Petitioner for making calls to counsel and has the capacity to do so.

[from the respondent’s submission]

[44]         In discussions with counsel at the hearing, this Court queried why the system for placing privileged telephone calls could not be completely detached from the recording system so as to render breaches of solicitor-client privilege impossible, rather than to simply “minimize the likelihood” that such breaches might occur. I do not think I was given a satisfactory answer.

[45]         The petitioner seeks an order enjoining the respondent absolutely from using a telephone system that has the ability to record solicitor-client telephone calls. He submits that the system the respondent describes leaves him vulnerable to further breaches, in breach of the respondent’s clear obligation to protect prisoners’ solicitor-client privilege.

[46]         It does appear that despite the improvements the respondent describes, the telephone system remains vulnerable to abuse by “super-users” and “site-managers” who are able to change the designation of a lawyer’s telephone number from privileged to non-privileged without leaving a trace.

[47]         The respondent’s position, notwithstanding that possibility is that no declaration is necessary because the respondent may be trusted:

173.    The Respondent says there is no need for this court to order any of the relief sought, including with respect to declaratory relief.

174.    By its nature, declaratory relief is meant to clarify rights and generally operates prospectively:

A declaratory judgment is a formal statement by the court pronouncing upon the existence or non-existence of a legal state of affairs. [...] The declaration pronounces on what is the legal position.

H. Woolf, J.Jowell & A. LeSueur, de Smith’s Judicial Review,
6th ed. (London: Sweet and Maxwell, 2007), c. 18-038

175.    Charter declarations may be retrospective or remedial in character. However, in this case the practical consequences that might be expected to flow from a declaratory judgment have already been effected by the Respondent. The Province says that any judicial pronouncement with respect to the Act or attendant regulation is unnecessary and, hence, undesirable because declarations are not meant to announce a past wrong but rather define ongoing and prospective rights. Clearly, as the Petitioner no longer resides in provincial custody, the declaratory relief in respect of alleged breaches or provincial legislation is moot and futile.

176.    As the parties no longer share a legal relationship, any real issue regarding the impact of the Unlawful Recordings may be addressed within the criminal trial process before Bernard J.

[from the respondent’s submission]

[48]         I have already indicated that I take the view that the parties do share a continuing relationship, notwithstanding the petitioner’s temporary absence from the Surrey Pre-Trial Centre, because he remains on remand in relation to the “Surrey Six” charges.

[49]         I accept the respondent’s submission respecting the prospective effect of declaratory relief. Courts do not normally enjoin government action or mandate that government take a particular course but expect the government to act in accordance with the court’s articulation of the law. Although the respondent is not government, I think the court is entitled to the same expectation in relation to its activities. I remain of the view, expressed in my earlier Reasons, that it is not for the court to purport to make operational decisions or decisions respecting the allocation of resources, assuming they meet an adequate standard (see para. 333 of the original reasons).

[50]         I have tried to make clear what the court expects of corrections when it receives a remanded inmate (see paras. 334-335 reproduced in the original reasons).

[51]         In light of the respondent’s admitted breaches of solicitor-client privilege, but mindful of the principles I have referred to, I will not purport to direct a specific system for ensuring that this does not happen in future. I will simply state flatly that it is the expectation of this Court that persons placed in the safekeeping of jailers, including the respondent, will not be vulnerable to such breaches and that it will be demonstrable, in any given case, that this is so. That is what I consider to be an “adequate standard.” Given the admitted instances of “inadvertence” to date, the most obvious means of ensuring that this expectation is met would be for such calls to be made on unrecordable lines.

[52]         The petitioner also seeks disgorgement of recordings of telephone calls the respondent continues to retain. Inasmuch as there is no legal justification for the retention of such recordings, I order that any such recordings be turned over to the I.S.S. by whatever means necessary, including delivery of the drives, as may be required for the respondent to fully relinquish them. I direct the I.S.S. to make a copy of any such recordings received, for the use of the petitioner.

VII

Summary

[53]         This Court declares the respondent is obliged to provide the petitioner with a telephone system for solicitor-client telephone calls that is not vulnerable to breaches of solicitor-client privilege, intentional or accidental.

[54]         This Court orders disgorgement of any recordings still in its possession on the term set out in para. 52 above.

[55]         The petitioner is entitled to special costs.

“McEwan J.”

________________________________

The Honourable Mr. Justice McEwan