Henry Waldock
Last updated: 2013-11-07
Sometimes, prisoners use their phone privileges to talk about crimes they committed or plan to commit. Sometimes they use the phones to commit offences. Recordings of these conversations make great evidence, if you can get them.
Legislation and regulations in many Canadian jurisdictions authorize corrections officials to record the telephone calls of inmates of provincial institutions.
Some provinces adopted "passive monitoring" systems, which record all prisoners' phone calls (except privileged ones). When a senior official learns of reasons to believe that particular phone calls pose a threat to the institution, or an inmate is committing crimes, the official may authorize someone to listen to the calls in question, and act on them.
Proving the recordings requires a witness who can explain how they were
made.
If you learn of a prisoner making telephone calls relating to crime, you should:
Because recording inmate telephone calls fills data storage devices
quickly, institutions tend to destroy recorded conversations after a
short time. In BC it's around 30 days.
B.C. and Albertan Corrections officials won't release the recordings unless you get a search warrant. But they may tell you orally what's in the recordings, without a warrant.
Expect institutional resistance. Legislation and regulation generally prevents the authorities from listening to the conversations unless a senior official has "reasonable grounds to believe" that the recordings qualify for snooping. Privacy concerns may limit what they can tell you. Each jurisdiction has slightly different rules.
|
Level of knowledge |
Information in the recordings |
Procedure |
|---|---|---|
|
Articulable cause |
Prisoner’s phone conversations contain discussion of the offence, but pose no risk to anyone. |
Investigate more. Don’t try to get the recordings yet. In
order to preserve evidence, you might contact the institution to
warn them of your interest in the recordings, and ask hem to
preserve them. |
| Reasonable grounds to suspect that life is in imminent peril | Listening to the recordings will protect the endangered persons. |
Contact the Director of the institution and explain the
peril. Demand disclosure. Legislation which empowers you includes s.487.11 of the Criminal Code Legislation which authorizes disclosure includes public sector freedom of information act in your jurisdiction. In B.C., it's the Freedom of Information and Protection of Privacy Act s.33.1(m) or (m.1) For other jurisdictions, see this page. |
|
Reasonable grounds to believe |
Prisoner is involved in illegal activities, harassing or causing harm to others, or jeopardizing the safety, security or operation of the correctional centre. |
Inform the Director of the institution (or the appropriate
designated person) what information you have. If possible,
do it in writing. Ask them to tell you if they have
evidence of criminal offences. |
|
Reasonable and probable grounds |
Conversation on the ICCS system contains information relevant to an offence. |
Search Warrant s.487 |
If you only suspect that a person of interest will discuss evidence with someone, this does not pose a risk to the public. In most situations, neither you or the Director have sufficient grounds to review recorded telephone conversations for such discussions. Do more investigation.
If you have reasonable and probable grounds to believe that the recordings already contain the information you want, then draft your search warrant (s.487) or productions order and apply to a J.P..
If you suspect that an inmate may
(i) become involved in illegal activities,
(ii) harass or harm others, or
(iii) participate in an activity that may jeopardize the safety, security or operation of the correctional centre; or
(iv) breach a
no-contact order
then you should warn the Director as soon as possible by
providing any information you have in writing, like an ITO.
Explain what cooperation you need to react to these problems when they
arise. I strongly recommend communicating grounds in writing, in
the expectation that a court will review whether the grounds justified
an intrusion into privacy.
If you believe that the ICCS already recorded calls of interest, then
send the institution a letter explaining why. Draft it like an
Information to Obtain. Source your facts. Protect the identity of
your confidential sources if possible. Focus your attention on public
risks, like tampering with witnesses or evidence, or other
threats. Ask the institution to preserve the recordings -- they
destroy recordings after 30 days.
In which institutions has your suspect been lodged? Who is/are the
Director(s) of those institution(s)? (Get address, internal phone and
FAX.) Try the Corrections website: BC;
Alberta;
Saskatchewan; Manitoba;
Ontario;
Quebec;
Nova Scotia, New
Brunswick. Ask them whether the inmate made calls from that
institution.
Who are your suspect(s) associates? What phone numbers do they use?
Which witnesses will your suspect(s) be interested in affecting? What are their phone numbers?
What evidence will your suspect(s) want to destroy or tamper with?
Through which friends or acquaintances is your suspect(s) likely to make third party calls? What are their phone numbers?
Your suspect(s) may ask other inmates to lend their calling cards in order to evade telephone blocks. Which inmates’ cards will they borrow?
If witnesses already complain of threatening calls: What dates? What times? How long? What phone numbers?Although I know about B.C.'s inmate call control system, I have little
experience with the systems in other provinces. Please email me if
you know the mechanics of the systems in your jurisdiction.
| Province |
Legislation |
Recording system |
| B.C. |
Section
19 of the Corrections
Act expressly permits an "authorized person" to intercept,
monitor or record inmate communication. This may be done for
a variety of situations: "involved in illegal activities,
harassing or causing harm to others, or jeopardizing the safety,
security or operation of the correctional centre". But the
act requires a high standard of belief ("reasonable grounds to believe"). Section 15 of the Corrections Act Regulations prohibits release of the recordings without "lawful authority". Corrections authorities interpret this to mean police must get a warrant. In my view, this is unnecessary, because s.33.2(i)(i) of the Freedom of Information and Protection of Privacy Act applies. |
All calls recorded except calls made to privileged numbers. |
| Alberta |
Section
14.4 of the Corrections
Act authorizes the "director" of a correctional institution
to record conversations. The director may monitor
conversations if there are reasonable grounds to believe that they
contain evidence of offences (past or future), or affect victims
or their families, or affect institutional security. Sections 31-31.6 of the Correctional Institution Regulation sets out specific rules the institution must follow. |
All calls recorded except calls made to privileged
numbers. Calls may not lawfully be retained no longer than
90 days without reason. |
| Saskatchewan |
Section 56.1 of the Correctional
Services Act authorizes recordings of telephone calls.
Sections 48-48.91 of the Correctional
Services Administration, Discipline and Security Regulations
govern the rules the institution must follow. Section 48.91
permits disclosure of telephone conversations without warrant. |
Calls may not lawfully be retained no longer than 90 days without reason. |
| Manitoba |
S. 42
of the Correctional
Services Act very generally authorizes interception of
inmate communications on reasonable grounds. s. 71 of the Correctional
Services Regulation specifically authorizes interception of
inmate telephone calls. S. 56(5)
of the regulations authorizes release of prisoner information if
there is a security risk, danger to a person, or the information
will identify an offender. Arguably, s.44
of the Freedom
of Information and Protection of Privacy Act may permit
further disclosure of recordings which would assist law
enforcement. |
|
| Ontario |
S.17.1
of the General
Regulation pursuant to the Ministry
of Correctional Services Act empowers the Superintendent or
designate to authorize in writing the recording of any
inmate. There must be reasonable grounds that the
"conversations will contain evidence of an act that would
jeopardize the security of the institution or the safety of any
person". S.10
of that Act seems to authorize disclosure to police. |
|
| Quebec |
I found nothing in the legislation
nor regulation
regarding recording inmate telephone calls. |
|
| New Brunswick |
Neither the Corrections
Act nor the General
Regulation discuss inmate communications. |
|
| PEI |
Neither the Correctional
Services Act and General
Regulations discuss inmate telephone calls. |
|
| Nova Scotia |
S.55
of the Correctional
Services Act generally authorizes interception of inmate
telephone communications, but s.60
of the Correctional
Services Regulations spells out that the superintendent must
have reasonable grounds to believe that that offender is involved
in crime, harassment, bothering children, violating court orders,
creating a security risk or public risk. |
|
| Newfoundland |
Nothing in Newfoundland's Adult
Corrections Act breathes a word about inmate
communications. I can't find any associated regulations
either. |
|
| Nunavut |
Neither the Corrections Act nor the Corrections Service Regulations discuss inmate communications. | |
| Yukon |
Section 17 of the Corrections
Act and s.15 of the Corrections
Regulation authorize recordings of inmate communications. |
|
| Northwest Territory |
Neither the Corrections
Act nor the Corrections
Service Regulations discuss inmate communications. |
|
| Canada |
Corrections
and Conditional Release Act s.94 of the Corrections and Conditional Release Regulations empowers the the institutional head or designate to intercept inmate communications if there are reasonable grounds to believe that doing so will produce evidence of criminal offences or institutional risk. |
Inmates may call only telephone numbers which were
pre-approved. Their calls may be recorded. |
In British Columbia and Albertan prisoners enter a Provincial correctional centre, they must sign a form which warns them that their calls “may be monitored or recorded”. In B.C., each prisoner receives a unique “CS number” (like an FPS number), which is recorded onto a phone card.
When the prisoner wants to make a call, he enters a phone booth over which stands a sign warning him again that calls “may be monitored or recorded”. When he picks up the hand set and inserts the card, an automated voice warns him again that the call “may be monitored or recorded”.
When he dials a number, the phone system checks to see if he’s calling a privileged number (lawyer, M.L.A., ombudsman) or an unprivileged number. If it’s unprivileged, the phone system also checks to see if this number blocked prisoner’s calls. If not, the call goes through, and the call is recorded.
When the recipient picks up the phone, s/he hears an automated voice which warns that the call may be recorded or monitored. The voice asks the recipient to press “0” to accept the call, “5” to block all future calls, or to hang up to reject this particular call.
British Columbia's system is called the "Inmate Call Control System" (ICCS). The system logs and records all calls from ICCS to unprivileged numbers.
As I understand it, when CSC receives an inmate, they create a list of the phone numbers the inmate would like to call. The phone system permits them to make these calls, but blocks all others.
I hope to find out more about their system shortly. If you need
to know immediately, contact the institution in question.
If the jail authorities find evidence of crime in the recordings, can
they disclose the evidence to you?
In Manitoba and Saskatchewan, they can, without warrant, because their
legislation says so.
In B.C., unless you present the prison authorities with a search
warrant, production order or wiretap authorization, they may "relate the
content" of the record to you. (B.C. Corrections Branch Adult
Custody Policy 7.8.14. Dissemination of ICCS Records.), but they won't
release them.
Generally, courts find that prisoners have a small, but real,
expectation of privacy over their telephone calls. In B.C. s.15
of the Corrections Act Regulations prohibits release of the
recordings without "lawful authority". Corrections officials think
this means "warrant or production order". They won't release the
recordings without one.
I disagree with this policy, because s.33.2(i)(i)
of the Freedom
of Information and Protection of Privacy Act permits public
institutions to release information to law enforcement agencies which
are investigating crime. All provinces have similar
legislation.
The recording doesn't speak for itself. Judges won't permit the recording into evidence unless a witness testifies how it came into existence. Therefore, make sure you identify the person who downloaded the recording from the monitoring system. Giroux, 2013 NWTTC 4.
The binding decision in B.C. on how the Corrections Act works is R. v. Siniscalchi, 2010 BCCA 354. The court confirms that prisoners enjoy an expectation of privacy over their telephone calls, and you need a warrant or court order based on reasonable grounds to get inmate recordings. (The court did not consider whether the freedom of information legislation applies.) The court also confirmed the constitutionality of the entire call system. It's okay for Corrections to record the calls.
In Alberta, Drader, 2012 ABQB 168 reconsidered 2012 ABQB 469, the court reached the same conclusions about Albertan legislation, and added that it saw no need for a correctional institution to seek permission of an independent authority (like a judge) before reviewing inmate communications.
Curiously, in Simon,
2013 ABQB 95, a court found that absent any specific notice, a prisoner
of police in a holding cell could expect that his conversations with a
prisoner in a nearby cell would not be recorded. The judge
excluded recordings made that way.
Federal penitentiaries monitor inmate phone calls using the
"Millennium" system. In Hunter
v. Canada, [1997] 3 F.C. 936, the court found that Federal inmates
do not enjoy an right of privacy over their telephone calls.
Alcorn v. Canada (Commissioner of Corrections) 163 F.T.R. 1 affirmed at
[2002] F.C. J. No. 620
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