Federal Court Certifies Class Action Over Alleged Illegal Interceptions of Prisoner Communications
Karunjit Singh
Originally published on Law360 Canada, formerly, The Lawyer’s Daily, © LexisNexis Canada Inc.
The Federal Court has certified a class action against the government over allegations that the Correctional Service of Canada (CSC) illegally intercepted private communications of incarcerated people, including those protected by solicitor-client privilege.
In Philip v. Canada (Attorney General), 2024 FC 1907 , released on Nov. 27, Justice Simon Fothergill held that the plaintiffs’ statement of claim pleaded sufficient material facts to disclose reasonable causes of action under s. 8 of the Charter and under the Crown Liability and Proceedings Act (CLPA).
Under s. 94 of the Corrections and Conditional Release Regulations (CCRR), the institutional head or a member designated by the institutional head may authorize, in writing, that communications between an incarcerated person and a member of the public be intercepted in certain circumstances.
Such authorization may be issued where there are reasonable grounds to believe that the communication contains or will contain evidence of an act that would jeopardize the security of the penitentiary or a person or of a criminal offence or of a plan to commit a criminal offence.
Under Commissioner’s Directive [CD] 568-10, which deals with the interception of incarcerated people’s communications, an institutional head may only authorize such an interception after a security information officer (SIO) completes an authorization to intercept incarcerated people’s communications form containing sufficient information to demonstrate “reasonable grounds to believe” that requirements of the CCRR have been met.
The plaintiffs, Adrian Philip and Blake Wright, are incarcerated in federal penitentiaries operated by the CSC. Philip has been incarcerated since February 2016. In April 2016, he was charged with additional offences, including possession of marijuana and heroin for the purposes of trafficking, which he allegedly committed while incarcerated.
In August 2017, Philip was informed by his legal counsel that CSC had listened to and recorded his personal conversations before the additional charges were laid.
CSC has also intercepted his privileged conversations and disclosed their content to third parties, including for the purpose of charging him in April 2016.
The warden of a CSC penitentiary acknowledged in an affidavit that at least some of Philip’s communications with his counsel were improperly intercepted by CSC.
The plaintiff, Blake Wright, learned in 2022 that CSC had made copies of his fax correspondence with legal counsel, and these had been retained on his case management file. The CSC noted that only the cover pages of Wright’s faxes were retained, as these confirmed the faxes had been sent.
In some cases, mail sent to Wright by his wife, the plaintiff Serena Gray, was returned to Gray. When Wright complained, he was told that the mail was not delivered because it was not consistent with his correctional plan and/or family support objectives. Wright claimed that the CSC could not have made this assessment without reading his mail.
A 2018 audit on the interception of incarcerated people's communication found that approximately 40 per cent of such interceptions were not supported by “reasonable grounds to believe,” as required by the CCRR.
A 2018 audit on the interception of incarcerated people's communication found that approximately 40 per cent of such interceptions were not supported by “reasonable grounds to believe,” as required by the CCRR.
Of the 79 interceptions for which prior authorization had been granted, 10 per cent resulted in the interception of privileged communications with lawyers. The audit also found that CSC had failed to identify certain communicants on common call lists as privileged.
It also found that at nine of the 11 institutions audited, deputy wardens had provided verbal authorization for interceptions before the written forms were completed and that authorization forms were backdated to reflect the date of verbal approval at two institutions.
In 60 per cent of the cases audited, the initial authorization for interception was granted for longer than the mandated 30 days. In 43 per cent of cases, extensions were granted for longer than the permitted 15 days and extensions were granted after the expiry of the existing authorization in another 43 per cent of cases.
During the hearing, the parties informed the court that they had reached an agreement in principle respecting certification and submitted a memorandum of agreement and a litigation plan to the court
Justice Fothergill noted that the parties had in their memorandum of agreement acknowledged that the plaintiffs’ pleadings disclose reasonable causes of action pursuant to s. 8 of the Canadian Charter of Rights and Freedoms and ss. 17 and 18 of the CLPA.
The judge noted that the reasonable expectation of privacy regarding solicitor-client communication is invariably high and that CD 568-10 confirms that solicitor-client communications are presumptively ineligible for interception.
The judge found that the statement of claim pleaded sufficient material facts to disclose a reasonable cause of action pursuant to s. 8 of the Charter.
The court also held that the pleadings disclosed a cause of action with respect to s.17 and s.18 of the CLPA, under which the Crown is liable for loss or damage caused as a result of intentional interceptions of private communication and the use or disclosure of such communications.
The court certified the class action.
A spokesperson for the CSC told Law360 Canada that the CSC takes its obligations with respect to interception of incarcerated people’s communications very seriously and that interception is done in compliance with existing laws, policies and guidelines.
“Already CSC conducted a multi-year audit of its interception of inmate communication activities. In response to the audit findings and recommendations, CSC took swift action and has since completed all deliverables in CSC’s Management Action Plan,” CSC told Law360 Canada in an email.
In response to the 2021 audit, the CSC had released a management action plan including recommendations for the revision of the national guidance for the interception of communication and for the provision of continuous training for SIOs, institutional heads and deputy wardens on the relevant legal and policy framework.
Counsel for the plaintiffs were Patrick Dudding, Rajinder Sahota and Emmanuela Bocancea of Acheson Sweeney Foley Sahota LLP. They were not immediately available for comment.
Counsel for Canada were Éric Lafrenière, Laurent Brisebois, Kim Nguyen and Ami Assignon of Justice Canada.
