An internal audit found that federal prison staff improperly intercepted communication between an inmate and their lawyer in 10 per cent of cases reviewed, amounting to possible breaches of solicitor-client privilege.
The newly released Correctional Service of Canada audit also discovered that a lack of guidance and training led to other “significant compliance issues,” including failure to support or document grounds for snooping on prisoners’ conversations.
In addition, there were insufficient safeguards to ensure legal and policy obligations were met with respect to later notifying inmates that their communications had been intercepted.
The audit says the issues went largely undetected due to poor quality assurance and a lack of monitoring and reporting activity.
The prison service has legal authority in many instances to intercept inmate communications — including letters, telephone calls and conversations during the course of a visit — without receiving prior authorization from a court.
It says lawful monitoring of inmate communications is sometimes necessary in order to maintain the safety and security of prisons.
The auditors stress that given the implications for an inmate’s privacy, it is essential the prison service have an effective framework in place to ensure interceptions respect the law.
“We found that several of the key activities associated with the communication intercept process were not always compliant with requirements,” the April 2021 audit report says.
The Correctional Service agreed with the audit findings and recommendations and prepared a detailed plan to address the various issues. The plan is slated for full implementation by the end of this month.
The reviewers visited federal institutions in different parts of the country, interviewed staff and examined samples of intercepted communications. The first phase focused on intercepts that were approved and completed from Jan. 1, 2017, to June 22, 2018. A second phase looked at ones between Nov. 1, 2018, and April 12, 2019.
Prison officials are not permitted to intercept privileged communications unless specific legal requirements are met. Privileged communications include correspondence and conversations between inmates and legal counsel, the correctional investigator, various elected politicians, consular officials, the federal human rights commission, and the information and privacy commissioners.
In the first phase of the audit, telephone communication between an inmate and their lawyer “was intercepted without approval” in eight of 79 files reviewed, just over 10 per cent, “resulting in a potential breach of solicitor-client privilege.”
The auditors suggest problems stemmed in part from confusion over the need to ensure lawyers’ phone numbers were excluded from lists related to potential intercepts.
The second-phase review of such phone intercepts demonstrated “a slight improvement,” but again highlighted a need to implement quality-assurance processes, the audit says.
John Struthers, president of the Criminal Lawyers’ Association, called the prison service’s unauthorized interceptions involving legal counsel systemic abuse of the Charter of Rights and Freedoms.
“It’s outrageous. Heads should roll,” said Struthers, whose organization has 1,700 members and serves as a voice for criminal justice and civil liberties.
“Anybody who countenanced this, knew about it, permitted it or encouraged it should be removed from their position immediately,” he said.
“It is critically important that people who are charged with crimes have the right to retain and instruct counsel without delay in privacy.”
The auditors also found:
— Approval to intercept was not always given in writing by an individual with the appropriate authority before the start of the authorized intercept period;
— Intercepts were often approved for time frames that exceeded those provided for in a directive;
— Intercept activity was not documented as required.
In a response to questions about the audit, the Correctional Service of Canada said it is committed to ensuring the privacy of offenders is respected and that inmate communication is intercepted in compliance with laws, policies and guidelines.
Any breach of an inmate’s personal information is subject to reporting under the prison service’s guidelines for privacy breaches, said spokeswoman Marie Pier Lecuyer.
“As part of this process, CSC has communicated with offenders who were identified to explain any breach of their personal information and inform them of their right to file a complaint.”
During the course of the audit, and even before completion of the first phase, the prison service took corrective measures to address the most significant preliminary results, Lecuyer said.
The service is in the process of establishing a National Interception Centre — to be up and running by the end of October — to provide “rigorous oversight, administration and governance” of intercept activities at all federal correctional institutions, she added.