R v Drader, 2012 ABQB 168

Court of Queen ’ s Bench of Alberta Citation: R v Drader, 2012 ABQB 168 Date: 20120309 Docket: 110234887Q2 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Adam Neil Drader, Andrew Martinus Drader and Robert Archie Cormier Applicants/Accused Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] The three Accused face three charges each relating to the fraudulent use of credit card data and two counts of fraud. In addition, the accused Andrew Drader and Robert Cormier each face one count of identity theft and one count of trafficking in identity

information. The alleged offences all occurred while the Accused were inmates at the Edmonton Remand Centre ( “ ERC ” ). [ 2 ] The Accused challenge the constitutionality of s 14.4 of the Corrections Act , which allows the recording and monitoring of inmate communications. Cormier argues that the monitoring of his telephone conversations breached his s 8 Charter right to be secure from unreasonable search and seizure. All Accused argue that evidence seized during a subsequent search and seizure of their cells was derivative evidence which should be excluded along with the recordings of all monitored calls. II.

Background [ 3 ] On or about April 2010, a new inmate recording system was installed at the ERC. This system was set up to record all inmate telephone calls other than those outgoing calls identified as being to a party over whom privilege would attach, such as a lawyer. [ 4 ] Detective Gauthier of the Edmonton Police Service ( “ EPS ” ) had been familiar with Mr.

Robert Cormier for approximately six or seven years. [ 5 ] In late May 2010, Gauthier received information from a confidential source that Cormier and Andrew Drader were inmates at the ERC and were conducting credit card frauds through the use of the telephone system at the ERC. He understood that they had a large number of credit card numbers and information in their possession. [ 6 ] Gauthier checked into the reliability of his informant with RCMP members who knew the informant and had dealt with him.

Gauthier then telephoned the ERC and spoke to Bob Miller who advised him to contact Glenn Simms, Security Operations Supervisor. Gauthier did so on June 2, 2010. [ 7 ] Gauthier advised Simms of the information received from the informant. Gauthier told Simms that he had confirmed the source's credibility with the RCMP. He did not tell Simms anything about the source itself, nor where the information had come from.

He also did not tell Simms what information he had received from the RCMP concerning the reliability of the source. [ 8 ] Gauthier also advised Simms that Cormier had previously been involved in credit card frauds and, in general, had a history of this type of conduct. He understood that Cormier was in the ERC at the time for a similar offence. [ 9 ] Simms said that he would investigate Cormier and, in particular, whether the information relayed by Gauthier was reliable.

Gauthier suggested to Simms that he should listen to Cormier ’ s telephone calls as he knew that they had been recorded and that Simms had access. [ 10 ] Simms looked at Cormier ’ s prison file. He noted similar prior charges against Cormier. [ 11 ] Simms knew that he required authorization from the Director of the ERC in order to monitor telephone calls. He prepared a report to Wayne Reddon, the Director, and to Gordon Barinecutt, the Associate Director. He tried to get in touch with Reddon and then Barinecutt, but both were absent.

Simms then contacted Daniel Szackacs who did not work at the ERC at the time, but was in a more senior position as a Deputy Director of the Adult Centre Operations Branch ( “ ACOB ” ) in the Ministry of the Solicitor General. He had previously been a Director of the ERC. [ 12 ] Simms knew that in order to obtain authorization, the person granting it must have “ reasonable grounds ” . Simms relayed the information to Szackacs that he had received from Gauthier, including the names of the individuals involved. He identified Cormier and Andrew Drader who Gauthier had described as “ muscle ” .

To Simms, “ muscle ” meant an enforcer, which meant the possibility of violence or a threat of violence.

[ 13 ] Szackacs advised Simms to confirm authorization with the ERC Director and advise him that Szackacs had approved of the monitoring. Szackacs recognized that the Director could still decide that monitoring was not appropriate. [ 14 ] Szackacs confirmed that he was contacted by Simms and told about the contact initiated by the EPS. Szackacs was advised of possible criminal behaviour relating to credit card fraud. The names of Cormier and Andrew Drader were familiar to him.

Szackacs testified that after receiving the information from Simms, he believed there existed extreme potential that criminal activity may be taking place to put product on the street in order to finance contraband to be brought into the ERC. He believed the introduction of certain types of contraband would pose a threat or risk to the security of the ERC. He understood Cormier to be the one making contact with individuals on the street and Andrew Drader to be “ the muscle ” dealing with other participating inmates.

Based on the individuals involved, the information that pointed to them, the risk or threat to the facility and the risk to the public, Szackacs believed that the recordings would probably contain evidence which would assist in stopping or eradicating the activities. He therefore believed he had reasonable and probable grounds to authorize the monitoring of the telephone calls. [ 15 ] No written document was provided by Szackacs to Simms authorizing the monitoring of any telephone calls.

While he did not obtain written authorization from Szackacs, who was off site, Simms did document in his e-mails the verbal authorization which he received. Simms testified that verbal authorization was granted, and Szackacs agreed that this was done. [ 16 ] Simms listened to approximately 10 or 12 calls. He was satisfied as to the validity of the information he received from Gauthier. After preparing the memo attached to his e-mail of June 2, 2010 at 12:16, he was told not to monitor any further calls as it was unnecessary. [ 17 ] Simms considered Corrections to be a separate entity from the EPS.

In his view, the mandate of Corrections is to protect the public from the activities of inmates and he did not feel that his job was to help the police. When aware of criminal activity, he may charge an inmate with a disciplinary offence. If the matter is serious, he may call the EPS but it is up to the EPS whether charges are laid. [ 18 ] However, as Gauthier was aware of the situation and had provided the original information, Simms kept Gauthier informed.

He also did so because the allegations involved criminal activity and only the EPS could address possible criminal charges. [ 19 ] E-mails exchanged between Simms and Gauthier on June 2, 2010 indicate the following: 10:23: Simms advises that he had obtained permission “ from the Boss ” to begin listening to Cormier ’ s calls and that Gauthier ’ s “ informant is good ” . 10:46: Name, phone number and address of individual provided by Simms to Gauthier. According to Simms, this individual was the one placing an order for Cormier. 11:07: Simms advises Gauthier: This is a gold mine.

Listening to him tell another girl to use Sears.ca or Puma.ca...don ’ t need verification codes on credit cards or something...order the most expensive stuff. Sounds like this one is his girlfriend... “ Nothing but the best for us. ” 12:16: Simms attaches a memo forwarded also to Reddon, Barinecutt and Szackacs which provides: ... After consulting with Mr. Szackacs I commenced monitoring some of CORMIER ’ S conversations on this date to investigate this information. Almost immediately while listening to CORMIER it was apparent he was conducting credit card fraud over the phone via accomplices on the street.

He can be heard instructing a “ Carrie Ann ” at 780-[...]-[...] how to order a Telus service using the ID of ‘ Tammy Simmonds ’ . He provides her the driver ’ s license number[...] and Alberta Health Care Number [...]. She in turn provides her address, [...]Yellowhead Trail, #203, T5B [...].

During other conversations he claims to have a buddy working at Dell that will ship him anything, and is expecting delivery of two cameras. During another conversation to 780-[...]-[...] he coaches another female who is placing an order from Sears.ca while on the phone to him using a credit card no. he provided. He states he may send her more numbers through the mail, but for now ‘ has a hand full of credit card numbers ’ on him. The other party can be heard saying she ordered an Adidas track suit, Lugz shoes, Jean, Dockers Belt. ACDC shirt.

He tells her to use the name “ Tammy Harter ” , and ship to a billing address that sounds like [...] 119 Street, Apt 306. The card number used during this transaction is read back to CORMIER and is [...] [...] [...] [...], Expiry 09/11. The confirmation number after the order is placed is also read to CORMIER by the female and is [...]-00001. It is after this transaction he says to the female call recipient “ you should see what I have in my hand right now, a huge list of credit card numbers ” .

At this time I concluded monitoring any more conversations as I felt this was sufficient evident (sic) of criminal activity. [ 20 ] On June 3, 2010, Simms and Gauthier exchanged e-mails highlighting the need for Gauthier to obtain a search warrant to obtain disks with the Cormier phone calls burned on them. [ 21 ] On June 3, ERC staff led by Simms conducted a search of Cormier ’ s cell and later that of Andrew Drader, which he shared with his brother Adam.

A number of items were seized from each of the Accused. [ 22 ] Also on June 3, 2010, Simms provided an email report to Director Reddon and Deputy Director Barinecutt summarizing the information from the informant and Cormier ’ s calls, advising that he had monitored the calls. He copied the report to Szakacs. [ 23 ] Gauthier swore an Information To Obtain ( “ ITO ” ) on July 13, 2010 which provided the following information: • In late May 2010, Gauthier received information from a confidential human source ( “ CHS ” ) informing him that Cormier was in ERC doing credit card fraud using the telephones in ERC.

The CHS stated that Cormier was the main person involved in doing the frauds and Andrew Drader was working with him together with unidentified females, not in ERC. Cormier and Drader would call the females on the ERC phones to assist them in the frauds.

The CHS also stated that Cormier and Andrew Drader had a large amount of credit card numbers and purchase order numbers in their physical possession or in their cells in ERC. (at para 3) • He confirmed the credibility of the CHS with two other police officers. (at para 4) • Cormier had been known to him by reputation for a period of six years and a CPIC check disclosed a history of 80 convictions of which at least 19 were fraud/theft related, including five for fraudulent use of credit cards. (at para 6 and 7) • A CPIC check of Andrew Drader disclosed at least 56 convictions, many of which were theft related and in 1999 and 2002 he was convicted of theft of credit card and use of credit card information. (at para 12) • Gauthier provided Simms with a

summary of the information received from the CHS. (at para 14) • Simms advised him that he had received permission to monitor Cormier ’ s calls and he was advised by Simms that his “ informant is good ” (at para 17) and was provided with a

summary of conversations Cormier had had with unknown females involving the use of

credit card data and personal information to make purchases. (at para 19) • Gauthier provided a

summary of the information provided by Simms. (at para 21) • He was advised by Simms on June 3, 2010 that a search of the cells of Cormier, Andrew Drader and Adam Drader revealed numerous books and papers containing what appeared to be credit card numbers and purchase order numbers. (at para 25) On June 3, 2010, he attended at ERC and met with Simms.

He was shown all of the items seized from Cormier and the Draders. (at para 27) • He was unaware of the possible involvement of Adam Drader until advised of the search of Andrew Drader ’ s cell. (at para 31) • He determined that Cormier had paid four fines in the sum of $414 each (for a total of $1,656) using a fraudulent credit card number (at para 33). [ 24 ] Gauthier obtained a Warrant to Search allowing him to seize those documents obtained by the ERC from the cells, the electronic telephone call monitoring data and audio recordings of recorded communications by Cormier and the Draders and copies of telephone call logs for each of the Accused. [ 25 ] Items seized from Cormier and turned over to Gauthier included: • 8 notebooks containing a large amount of credit card numbers; • loose papers containing credit card numbers, variations of credit card numbers, phone numbers and addresses; • loose papers containing names and personal profiles. [3] Items seized from Andrew Drader and turned over included: • Notebook; • Cardboard sheets with credit card numbers and variations of credit card numbers; • Sheet with order numbers. [4] Items seized from Adam Drader included a book with names and credit card information. [5] In addition, Gauthier was provided with the call logs for Cormier, Andrew Drader and Adam Drader; audio tapes for Cormier; an audio file list for Andrew Drader of the calls that were recorded; and an audio file list for Adam Drader. [6] Gauthier acknowledged that his targets were Cormier and Andrew Drader and that he was initially not investigating Adam Drader.

[7] Simms testified that Cormier ’ s calls were monitored to determine whether criminal activity was occurring and also to protect the public, including individuals and retail stores. He also indicated that cell searches are done routinely for security reasons and also to deter improper behaviour, recover contraband and prevent escapes. Cell searches of one inmate necessarily involves a search of the co- occupant ’ s space. III. Legislation, Policies and Procedures i.

Corrections Act and the Correctional Institutional Regulation [8] The Corrections Act , RSA 2000, c C-29 and the Correctional Institutional Regulation , Alta Reg 205/200 set out a legislative regime for recording and monitoring of inmate communications. The Act provides:

Definitions 1 In this Act, ... (b) “ correctional institution ” means ... (ii) a detention or remand facility operated by or for the Government of Alberta to detain arrested, charged or convicted persons pursuant to a law in force in Alberta, ... (c) “ director ” means, with reference to a correctional institution, the executive head of that correctional institution; ... (d.1) “ inmate communication ” means communication made by oral, written or electronic means between an inmate and any other person, but does not include a privileged communication as specified in the regulations. ...

Function of director 7(2) The director of a correctional institution shall, subject to the direction of the Chief Executive Officer, ... (

b) direct the operation, management and administration of the correctional institution including matters of security, inmate control, staff discipline and the care, custody, treatment and training of inmates. ... Monitoring and recording inmate communication 14.4(1) Subject to the regulations, the director of a correctional institution may direct that inmate communication initiated by or received by an inmate may be recorded by electronic or other means.

(2) The director of a correctional institution may restrict or monitor inmate communication where the director believes on reasonable grounds

(

a) that the inmate communication contains or will contain evidence of (

i) an act that would jeopardize the security of the institution or the safety of any persons, or (ii) a criminal offence or a plan to commit a criminal offence, (

b) that the inmate communication is or will be made to a victim as defined in

section 14.3(1) or to another person who would be likely to consider the inmate communication intimidating or threatening, or (

c) that the monitoring of the inmate communication is otherwise necessary for the security of the institution or for the safety of inmates, staff or the public. ... Hearing adjudicators and disciplinary hearings 15(3) The fact that an inmate is alleged to have committed

an act or omission that is an offence under an enactment of Canada or Alberta does not prevent disciplinary action from being taken against the inmate in respect of a contravention of this Act or the regulations or the rules of a correctional institution. ... 33 The Lieutenant Governor in Council may make regulations ... (k.2) governing the monitoring and recording of inmate communication and prescribing the procedures to be followed in implementing monitoring and recording of inmate communication; (k.3) specifying communications between an inmate and another person that are privileged communications; (k.4) respecting criteria that must be applied in determining whether an inmate communication is a privileged communication ... [9] The Regulation provides in part:

Interpretation 1(1)(e) “ privileged communication ” means a communication between an inmate and any of the following persons, offices or entities: (

i) the inmate ’ s legal counsel; (ii) the Executive Director or any delegate of the Executive Director; (iii) the Chief Executive Officer of the Alberta Correctional Services or any delegate of the Chief Executive Officer;

(iv) the Commissioner of Corrections or the Correctional Investigator appointed under the Corrections and Conditional Release Act (Canada) ; (

v) a member of the Senate or House of Commons of Canada; (vi) a member of the legislative assembly of Alberta or of another province or territory of Canada; (vii) the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act or the Privacy Commissioner appointed under the Privacy Act (Canada) ; (viii) the Alberta Human Rights Commission or the Canadian Human Rights Commission; (ix) the Auditor General of Alberta or of Canada; (

x) a person designated as an officer under the Immigration and Refugee Protection Act (Canada) , if the inmate is detained or subject to a warrant for arrest and detention under that Act; (xi) an ombudsman appointed under

an Act of Alberta; (xii) a tipline program operated by a crime stoppers association, a law enforcement agency, a correctional institution or any similar entity to receive information on a confidential basis respecting offences. Searches 10(1) An inmate may be searched on admission to an institution and at any other times as the Director may require.

(2) A search may be conducted in any manner as the Director may direct.

(3) All searches of inmates are to be carried out in a manner so as to respect the dignity of the inmate as far as possible without interfering with the thoroughness of the search. Privileged communications 31(1) In this section, “ inmate communication ” includes a privileged communication.

(2) The Chief Executive Officer may authorize the establishment of inmate communication systems in an institution for the purposes of (

a) providing inmates with reasonable access to communication systems, and (

b) ensuring the security of the institution and the protection of the public.

(3) The director may suspend inmate access to any inmate communication system if, in the director ’ s opinion, (

a) the system is being misused or abused, or (

b) the suspension is necessary to maintain the security of the institution. 31.1 The director of an institution shall, if directed to do so by the Chief Executive Officer, ensure that (

a) the name of the institution is attached to inmate communications that are directed to recipients outside of the institution, and (

b) a recorded announcement, identifying that the inmate communication comes from the institution, is played at the beginning of inmate communications that are made by telephone or other electronic means to a place outside of the institution. 31.2(1) Privileged communications must not be recorded or monitored.

(2) If a privileged communication is inadvertently recorded during repair and maintenance of a communication system or otherwise, (

a) the communication must not be monitored, and (

b) the record of the communication must be destroyed as soon as practicable after any employee or agent of the institution is notified or becomes aware that the communication was recorded. 31.3(1) In this section, “ writing ” includes e-mail and other electronic writing, and “ written ” has a corresponding meaning.

(2) Before recording an inmate communication, the director must give reasonable notice to the inmate that the communication may be recorded.

(3) Notice may be given under subsection (2) by means of (

a) a written message on, attached to or accompanying any inmate communication that is made in writing. (

b) a recorded announcement played at the beginning of any inmate communication that is made by telephone or any other electronic means that includes an audio transmission, or (

c) any other method by which the notice may reasonably be expected to come to the inmate ’ s attention before recording begins. 31.4 If a record of an inmate communication contains some or all of the words that were communicated or any images of the parties to the inmate communication, the record must not be retained for longer than 90 days unless there are reasonable grounds to believe that the inmate is

(

a) involved in illegal activities; (

b) harassing or causing harm to others, or (

c) participating in an activity that may jeopardize the management, operation or security of the institution. 31.5 An inmate communication must not be monitored except (

a) in circumstances where the monitoring is authorized under

section 14.4(2) of the Act , and (

b) where the inmate has first been given reasonable notice that the inmate communication may be monitored. 31.6(1) Where monitoring of an inmate communication is authorized under

section 14.4(2) of the Act, the communication may be monitored by listening to, watching or reading it or any record of it that is made in accordance with the Act and this Regulation.

(2) Monitoring under subsection (1) may be carried out by electronic or other means. ii. Evidence of Terry Garnett [10] Terry Garnett, the Executive Director of the Adult Centre Operations Branch of the Correctional Services Division for the Solicitor General and Public Security, provided both affidavit and viva voce evidence. [11] Garnett deposed that following extensive reviews, Alberta Government officials identified a need and value in developing legislation and policies in conjunction with the Corrections Act , as it then existed, to include provisions for the recording and monitoring of inmate telephone communications. He stated that they considered the following: (

a) recording all non-privileged communication can be accomplished with greater ease than continually identifying specific individuals; (

b) targeting specific individuals, phone calls and establishing start and stop times and access involves issues pertaining to resources ; (

c) on many occasions, a correctional peace officer learns of a security/safety concern after an incident with an inmate occurs; (

d) the recording of all appropriate calls assists in being able to confirm that a threat was made after receiving a complaint from a victim; (

e) upon receiving a complaint from a non-contact individual (being an individual who is not to be contacted because of a Court Order or a complaint within the institution), recording allows for authorized staff to confirm if a breach of an order occurred. [12] Garnett further indicated that there have been cases of inmates in custody conducting drug and money transactions and making threatening calls to witnesses and crime victims. Inmates have also used the local telephones to make fraudulent long distance

calls and initiate criminal scams by ordering equipment, services or goods and billing unsuspecting victims. [13] Garnett deposed to incidents of receiving telephone calls from parents and ex-girlfriends or spouses complaining that they had received an unwanted telephone call or calls from an inmate. Recording the calls allows for later confirmation as to whether the call was made or not in the event the inmate denies having done so. [14] Garnett also identified various security breaches and concerns that can be alleviated or reduced with the ability to access or monitor recorded telephone calls.

For example, authorities at provincial correctional facilities can determine who was involved in bringing contraband and illicit drugs into the centre and can identify those involved in serious cases of assault, including death. iii. Policy and Procedures [15] The Alberta Centre Operations Branch ( “ ACOB ” ) issued its first policy and procedures manual for inmate telephone monitoring in February 2010. It outlines procedures to be followed when “ there are reasonable grounds to believe that the communication contains or will contain evidence that meet the criteria set out in

section 14.4(2) of the Corrections Amendment Act (2007) ” . [16] Clause 1 of the policy provides that the monitoring of communications shall be limited to listening to and/or recording inmate telephone communications where it is in the interest of security of staff, inmates and/or the public, and the personnel authorized to monitor is satisfied that communications between an inmate and the member of the public contains or will contain evidence of an action that would jeopardize the security of the Centre or the safety of the individual or interfere with the administration of justice. [17] The policy further provides that certain requirements must be met before the monitoring of communications: (

a) the communication is made in circumstances in which it is not reasonable to expect that it will be a “ private communication ” ; (

b) signs have been posted indicating that communications may be monitored; (

c) express consent has been obtained in the form of a written authorization; (

d) judicial authorization has been granted when required. [18] In compliance with the policy manual: 1. Each inmate signs a form on admission into the ERC which provides: i. Please be advised that all telephone communication including secure visitation are subject to monitoring and recorded unless your communication is considered privileged. The electronic records of your telephone communications are stored in a database and could be listened to when there are reasonable grounds to do so. 2. There are signs posted near the telephones and in the “ intake ” areas of the ERC which provide: ATTENTION ALL ACTIVITIES,

INCLUDING TELEPHONE COMMUNICATIONS IN THIS CORRECTIONAL CENTRE, ARE SUBJECT TO MONITORING AND MAY BE PASSIVELY RECORDED OR VIDEO RECORDED. Government of Alberta Solicitor and Public Security 3. Once telephone contact is made, a recording is played which is heard by both the inmate and the other person which states: This call is subject to recording and monitoring except for privileged communications between an attorney and client. 4.

The Inmate Manual available to all inmates upon their admission into the ERC provides: Please be advised that all telephone calls including secure visitation are subject to recording and monitoring unless your communication is considered privileged . The electronic records of your telephone communications are stored in a database and could be listened to when there are reasonable grounds to do so. Please be aware that telephone calls that are threatening or harassing in nature could result in new criminal charges as all telephone communication is recorded . (at p 17 and p 18, emphasis in original) IV.

Issues [19] The Accused argue that their s 8 Charter rights have been infringed. The issues are: A. Did Cormier have a reasonable expectation of privacy with respect to his telephone calls? B. Is s 14.4 of the Corrections Act unconstitutional? C. If s 14.4 is constitutional, did the appropriate person authorize the monitoring of the telephone calls in this case? D. Were there reasonable grounds to authorize the monitoring? E. If there has been a breach of Cormier ’ s s 8 Charter rights, should the evidence as against any or all of the accused be excluded

under s 24(2) of the Charter? V. Discussion A. Did Cormier have a reasonable expectation of privacy with respect to his telephone calls? [20]

Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. [21] To engage s 8 of the Charter, a person must have a reasonable expectation of privacy in the subject matter of a search orseizure (R v Edwards, (SCC), [1996] 1 SCR 128, [1996] SCJ No 11 at para 33; R v Gomboc, 2010 SCC 55 at paras17-18).

Section 8 protects only against unreasonable searches and seizures and therefore only protects reasonable expectations of privacy. [22]

Section 8 of the Charter protects privacy in relation to physical property as well as certain communications and information(Hunter v Southam, (SCC), [1984] 2 SCR 145; R v Tessling, 2004 SCC 67). [23] Cormier concedes that he had a lower expectation of privacy in relation to his communications while housed at the ERC thanwould a person on the outside.

However, he argues that he nevertheless had some expectation, and this reduced expectation wasviolated. [24] The Crown acknowledges that inmates do have some minimal expectation of privacy while at the ERC in relation to“communications” in general, and telephone conversations in particular.

However, the Crown submits that inmates have no suchexpectation with respect to the telephone communications that are recorded and monitored pursuant to the authority of s 14.4 of theCorrections Act. [25] The Crown relies on the form signed by each inmate on admission into the ERC, the signs posted near the telephones and inthe intake areas, the recording played once telephone contact is made, and the warnings in the Inmate Manual.

The Crown says thatthese notices clearly dispel any suggestion that an inmate would have more than a very minimal expectation of privacy in the contents ofhis non-privileged telephone communications. [26] Cormier was asked to sign the form upon admission to the ERC advising that all telephone communication would be subjectto monitoring and recording unless privileged. Signs were posted prominently in the intake area and above each set of unit phonesindicating that telephone communications are subject to monitoring and may be recorded unless privileged.

Every telephone call betweenCormier and another party had a prerecorded message played before the conversation started, indicating that the call was subject torecording and monitoring unless privileged. Finally, the Inmate Manual available to Cormier indicated that all telephone calls weresubject to recording and monitoring unless privileged and later, that all telephone communication is recorded. [27] In Weatherall v Canada (Attorney General), (SCC), [1993] 2 SCR 872, [1993] SCJ No 81 the Courtconsidered the issue of expectation of privacy in the custodial context.

LaForest J. stated: 5 Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to requireobservation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, thepublic and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannothold a reasonable expectation of privacy with respect to these practices.

[28] In other words, a man’s home is his castle but his cell is not. [29] Weatherall involved a challenge to the policy of frisk searching inmates. While LaForest J. stated that a prisoner could nothold a reasonable expectation of privacy with respect to a “frisk search, the count and the wind” (an unannounced patrol), he did not saythat an inmate has no expectation of privacy at all. [30] More recently, the Court in Tessling emphasized that the guarantee of security from unreasonable search and seizure onlyprotects a reasonable expectation of privacy (at para 19).

Binnie J. underlined the need to consider the totality of the circumstances withparticular emphasis on, first, the existence of a subjective expectation of privacy and secondly, the objective reasonableness of theexpectation (at para 45 referring to Edwards). He noted: 22 The original notion of territorial privacy ... developed into a more nuanced hierarchy ... at the bottom of the spectrum [being] a prison...

Such a hierarchy of places does not contradict the underlying principle that s 8 protects "people, not places," but uses the notion ofplace as an analytical tool to evaluate the reasonableness of a person's expectation of privacy. [31] In R v Siniscalchi, 2010 BCCA 354, the Court considered an inmate’s expectation of privacy specifically in relation totelephone calls: 85 In the circumstances, it is my view that inmates have a diminished (but not extinguished) expectation of privacy in their telephoneconversations.

They must expect that their calls will be recorded, and are on notice that they may be listened to by authorized officials inlimited circumstances. They are also entitled to expect that the contents of their conversations will be kept confidential by thoseauthorized officials except in very limited circumstances - situations detailed in the regulations, including situations where theconversations evidence a threat to persons or to the security of the prison. ... 99 In

summary, Mr. Siniscalchi could not expect his telephone conversations to be immune from interception by prison authorities. Hecould also hold no expectation that those authorities would refrain from involving the police if his conversations disclosed threats tosecurity.

He was entitled, however, to expect that prison authorities would listen to the conversations only where the statutory pre-conditions were met, and to expect that routine conversations that had no apparent connection with crime or prison security would bekept confidential by any prison official who heard them. [32] In R v Plant, (SCC), [1993] 3 SCR 281, [1993] SCJ No 97 at para 20, Sopinka J. described personalinformation as that which “tends to reveal intimate details of the lifestyle and personal choices of the individual”. “Inmatecommunications” could include face to face conversations with family, friends, intimate partners, doctors, psychologists, addictionscounsellors, clergy, and religious advisors.

In the case of self-represented accused, they could involve potential witnesses in advance oftrial. Therefore, “inmate communications” engage informational privacy concerns as described in Tessling. [33] I conclude that ERC inmates do have an expectation of privacy in their telephone communications, but it is very limited. Theirinformational privacy concerns arise in a place, the ERC, which is governed by a statutory regime requiring the Director to address,among other things, matters of security, inmate control, and the care, custody, treatment and training of inmates.

This regime permits thedirector to monitor inmate communication where the director believes on reasonable grounds that the communication will containevidence not only of a crime, but also of any act that would jeopardize, or the monitoring is otherwise necessary for, the security of theinstitution or the safety of any persons. [34] Given the content and number of warnings that non-privileged telephone calls may or will be recorded, ERC inmates canhave no expectation, objectively or subjectively, that their telephone communications will not be recorded.

Recording in and of itselfdoes not reveal information, but it does preserve and render such revelation possible. [35] To the extent that any minimal expectation of privacy arises in relation to passive recording of inmate calls, it bears notingthat recordings are generally kept for a period not exceeding 90 days. Second, under the Act and Regulation, they are not monitoredunless reasonable grounds exist.

[ 36 ] In light of the extensive notice provided to inmates regarding recording of their telephone communications, the extremely diminished expectation of privacy in the ERC environment, and the conditions attached to the recordings, I find, as did the Court in Siniscalchi , that even if there is some residual expectation of privacy in relation to recording, the routine, passive recording of inmate non-privileged telephone calls does not violate s 8 of the Charter . [ 37 ] As for monitoring, inmates can expect, and in fact they acknowledge in writing, that their calls will be subject to monitoring where the director has reasonable grounds to do so. [ 38 ] As to the extent of Cormier ’ s subjective expectation of privacy in his telephone calls, I note his response to an unidentified speaker in one of his calls who questions whether it is good to communicate over the telephone.

Cormier responds “ We ’ re o.k. for now, you know? ... I ’ m confident that - you know, they got - they got a little bit more important things to do than worry about me right now, you know? ” (Cormier transcripts at pp 521-522). While Cormier suggests that this statement is “ inconsistent with the inference that Cormier did not have any expectation of privacy in the phone call ” , I believe it signals the opposite.

It exhibits an understanding that the corrections officers had “ important things ” to worry about and if those “ important things ” disappeared or Cormier gave the officers reason to worry, his calls might be monitored. That is, his comment reflects an understanding that the risk of monitoring was reduced if he could stay under the radar.

It shows a subjective expectation that his calls would be monitored if officials had a reason to do so. [ 39 ] The suggestion was made by Cormier that the expectation of privacy in telephone communications goes at least as far as an expectation that the contents of the monitored calls will not be forwarded to the police.

In my view, once a monitored call is found to raise a s 14.4 concern, it must be expected that ERC officials will take necessary lawful steps to stop the offensive conduct and sanction the offender in accordance with ERC policies, and to share the information to the EPS if it appears a criminal act has occurred. Surely the offending inmate would not be surprised by any of these consequences.

Cormier was entitled, however, to expect that ERC would listen to the conversations only where the statutory pre-conditions were met, and to expect that conversations which were irrelevant to crime or prison security or the safety of any individual would be kept confidential. [ 40 ] Cormier signed a form acknowledging that all telephone communication would be subject to monitoring and recording unless privileged. I conclude that he had little or no subjective expectation of privacy in his telephone calls.

However, the absence of a subjective expectation of privacy is not fatal to the determination of whether a reasonable expectation exists ( Tessling at para 42 ). [ 41 ] As I have found above, a consideration of the objective expectation of privacy leads to the conclusion that there would be, at most, a severely diminished expectation of privacy, particularly with the numerous reminders to inmates at the ERC of the possibility of monitoring. [ 42 ] Finally, it must also be emphasized that the only calls monitored before Gauthier obtained the search warrant were those of Cormier.

It has not been suggested, nor could it be successfully argued, that the Draders had any expectation of privacy in Cormier ’ s telephone communications. [ 43 ] I conclude that Cormier had an expectation, albeit severely diminished, of privacy in his telephone calls sufficient to support standing for the purposes of this application. B. Is s 14.4 of the Corrections Act unconstitutional? i.

Overbreadth [ 44 ] Where an individual has a reasonable expectation of privacy, the Crown must satisfy three conditions in order to establish compliance with s 8: 1. the search or seizure was authorized by law; 2. the law authorizing the search or seizure was itself be reasonable; and

3. the search or seizure was carried out in a reasonable manner. (R v Collins, (SCC), [1987] 1 SCR 265, [1987] SCJ No 15 at para 23) Cormier takes the position that s 14.4 of the Act offends the second condition and the law authorizing the search was overly broad andtherefore was not reasonable. [45] A warrantless search is presumptively unreasonable (Collins at para 22; R v Evans (SCC), [1996] 1 SCR 8,[1996] SCJ No 1 at para 23). If the Crown is relying upon the seizure of evidence following a warrantless search, it bears the onus ofproving that the three conditions set out in Collins are satisfied.

The breach of any one of these three conditions is a violation of the s 8rights of the accused. [46] While the impugned conduct in this case relates to the recording and monitoring of inmate telephone calls, Cormierchallenges the constitutional validity of s 14.4 of the Corrections Act as being overly broad, because it encompasses not only inmatetelephone calls but all forms of inmate communications.

He notes that prior to the 2009 amendments to the Act, s 14.4 authorizedrecording and monitoring only of telephone calls, whereas the current legislation potentially allows the ERC to put a microphone in everycell, a recording device on every unit, a taperecorder in the nurse’s office, and a bug in every meeting with a counsellor. [47] Cormier raises the spectre of widespread clandestine surveillance of inmate communications of any sort.

However, s 14.4(1)of the Act provides that the director of a correctional institution may direct that inmate communications initiated by or received by aninmate be recorded only “subject to the regulations”.

Section 31.3(2) of the Regulation requires the Director to give reasonable notice tothe inmate that a communication may be recorded and stipulates the manner in which such notice is to be given. [48] The only evidence before the Court of such notices are of those which were given in relation to telephone communications.Further, there was no evidence in this application of recordings of any forms of inmate communications other than telephonecommunications. The Regulation requires that notice be given of recording of inmate communications.

It would be beyond the scope ofuseful hypotheticals to attempt, in this case, to imagine scenarios where notice might or might not be given, or recordings made or notmade, of communications other than telephone communications: R v Sharpe, 2001 SCC 2 at paras 111 - 113. [49] Charter rights must be considered in light of the relevant statutory and regulatory context. Recording and monitoring ofinmate telephone communication is used for a purpose set out in the statutory and regulatory scheme. The Act provides correctionalservices with a mechanism for reviewing and regulating inmate conduct.

The Act and the Regulation together constitute the law pursuantto which the recording was authorized. The Court declines to consider remote hypothetical situations without any relevant factual contextwhen deciding whether the situation presented in the case at bar infringes a legal or Charter right of the Accused. [50] When it was decided that telephone communications should be recorded for possible monitoring, regulations were passedsetting out the circumstances in which recording and monitoring could take place. Under s 14.4(1) of the Act, it is the director who maydirect that communications be recorded.

The Regulations provide the specific requirements for, and applicable restrictions on, therecording of inmate communication. [51] The recording of inmate communications under s 14.4 of the Act is expressly subject to the Regulation. In my view, thewording of the legislation and, particularly, the broad

interpretation that may be attached to the term “inmate communication” does notrender the legislation unconstitutionally broad. [52] Cormier also argued that s 14.4 is unconstitutionally broad as it allows for wholesale recording of communications withoutany suspicion of wrongdoing and without grounds to believe that subsequent monitoring of those communications will disclose evidenceof wrongdoing.

I reject this argument, given my findings above regarding the non-revelatory nature of recording, the extensive noticesprovided to inmates regarding recording of their telephone communications, the extremely diminished expectation of privacy in the ERCenvironment, and the conditions attached to preservation and use of the recordings.

ii. Prior authorization by a person capable of acting judicially [53]

Section 14.4(2) of the Act permits the monitoring of inmate communications where the Director believes, on reasonablegrounds, that one or more of the conditions set out therein have been met.

Cormier argues that the legislation is unconstitutional becauseit does not require prior authorization by a person capable of acting judicially. [54] In Hunter v Southam, (SCC), [1984] 2 SCR 145, [1984] SCJ No 36, the Court considered the requirementfor prior authorization given by the Director of Investigation and Research of the Combines Investigation Branch (“Director of the CIB”)for a search and seizure by Combines officers.

The Court held that although s 10(3) of the Combines Investigation Act (“CIA”) purportedto require prior authorization, it did not provide an acceptable procedure for the granting of that prior authorization.

In holding that theauthorization must be given by a person able to assess the evidence in an entirely neutral and impartial manner, Dickson J. (as he thenwas) stated at para 32: The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the stateand the individual to be assessed, so that the individual's right to privacy will be breached only where the appropriate standard has beenmet, and the interests of the state are thus demonstrably superior.

For such an authorization procedure to be meaningful it is necessary forthe person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral andimpartial manner. At common law the power to issue a search warrant was reserved for a justice. ... While it may be wise, in view of thesensitivity of the task, to assign the decision whether an authorization should be issued to a judicial officer, ... this is not a necessaryprecondition for safeguarding the right enshrined in s 8.

The person performing this function need not be a judge, but he must at aminimum be capable of acting judicially. [55] Cormier argues that the Director of the ERC is not capable of acting judicially when determining whether reasonable groundsexist to authorize the monitoring of inmate communications.

He analogises this situation to that in Hunter where Dickson J. noted that“the administrative nature of the Commission’s investigatory duties ... ill-accords with the neutrality and detachment necessary to assesswhether the evidence reveals that the point has been reached where the interests of the individual must constitutionally give way to thoseof the state”.

Similarly, the wide ranging responsibilities of the Director of the ERC under s 7(2) of the Act, which include theresponsibility to direct investigations into potential inmate misconduct, are inconsistent with the requirement that the Director also beable to assess the evidence in a neutral and impartial manner. [56] The investigative duties under the CIA are significant and the legislation provided that it was a member of the same bodywho must act in a judicial manner when authorizing the search or seizure.

The director of the CIB acts as a prosecutor and theCommission acts as investigator and judge with respect to alleged breaches of the CIA. Clearly, the director cannot be considered animpartial arbiter when considering whether to grant an authorization for a search and seizure (Hunter at paras 34-35). [57] There is a significant difference between those subject to investigation under the CIA and inmates subject to recording andmonitoring under the Corrections Act. The former are citizens carrying on their lives in freedom. The latter are in custody at acorrections facility.

The Director’s mandate and prescribed duties under the Corrections Act are wide ranging. The Act requires theDirector to consider matters of security, safety of persons (including inmates), both inside and outside the facility, and whether criminaloffences or plans to commit criminal offences, are taking place. Therefore, the primary functions of the Director of the ERC under theAct are to ensure and maintain the security of the institution, the safety of all inmates, staff and members of the public and to preventcriminal acts.

The Director of the ERC may or may not refer information obtained from monitoring to the EPS for consideration ofwhether criminal charges should be laid. In contrast, the investigations undertaken by the Combines officers in Hunter are specificallyand directly aimed at the discovery of evidence to be considered in a prosecution of the party being investigated. [58]

Section 14.4(1) exists to enable the Director to achieve his mandate. The Director is in the best position to consider whetherERC security may be threatened or compromised. [59] Where the Director has reason to believe the telephone communications system has been misused by an inmate, he maysuspend the inmate’s access to the phone system under s 31(3). Although the conduct investigated may also give rise to criminalconsequences, the Director does not decide whether to pursue criminal proceedings. [60]

Section 15 of the Act provides that hearing adjudicators from outside the facility preside over disciplinary hearings. While the

[60]

Section 15 of the Act provides that hearing adjudicators from outside the facility preside over disciplinary hearings. While theDirector of the ERC has the authority to decide whether discipline decisions should be appealed (s. 15(2) of the Act) or whether to applyfor judicial review of decisions, this does not necessarily make him a partial arbiter on the question of whether reasonable grounds existto monitor inmate communications.

I find that the Director, in this context, is a person capable of acting judicially and this aspect of theauthorization procedure does not render s 14.4 unconstitutional. [61] In the event that I am wrong in finding that the Director is a person capable of acting judicially in this respect, thenconsideration must be given to whether an exception exists in the circumstances of this case to the requirement of prior authorization by aperson capable of acting judicially. [62] La Forest J for the Court in R v Lyons, (SCC), [1987] 2 SCR 309 stated at 361: ...the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked.

Thus,certain procedural protections might be constitutionally mandated in one context but not in another. [63] In Thompson Newspapers v Canada, (SCC), [1990] 1 SCR 425, the appellant and a number of its officerswere served with orders issued pursuant to s 17 of the CIA to appear before the Restrictive Trade Practices Commission to be examinedunder oath and to produce documents. The issue before the Court was whether s 17 of the CIA was inconsistent with the provisions of ss.7 and 8 of the Canadian Charter of Rights and Freedoms, and therefore of no force or effect.

The Court held that s 17 did not violate ss.7 and 8 of the Charter and no prior judicial authorization from an independent arbiter was required. LaForest J. stressed the importanceof the regulatory nature of the CIA in determining the scope of s 8 of the Charter. [64] In R v McKinlay Transport Ltd., (SCC), [1990] 1 SCR 627, Revenue Canada conducted an income taxaudit of the appellants and pursuant to s 231(3) of the Income Tax Act, served the appellants with letters demanding information and theproduction of documents.

Again, the Court held that the absence of a provision requiring prior judicial authorization from an independentarbiter did not violate s 8 of the Charter. [65] In R v Wholesale Travel Group Inc., (SCC), [1991] 3 SCR 154, [1991] SCJ No 79 the Supreme Court ofCanada emphasized the contextual approach necessary when considering the scope of Charter rights. The Court stated that constitutionalstandards developed in criminal contexts are not applied automatically to regulatory offences.

The Court held that rights asserted by theappellant in that case must be considered in light of the regulatory context in which the claim is situated (at 226). [66] In Arkinstall v City of Surrey, 2010 BCCA 250, the City of Surrey enacted the Safety Standards Act allowing municipalinspectors to enter private residences and perform inspections without a warrant so long as they had reasonable grounds to enter thepremises for the purpose of inspecting regulated electrical work. The Arkinstall residence was earmarked for a safety inspection due tohigh electricity consumption.

Not surprisingly, this inspection was triggered by a suspected marijuana grow operation, and the RCMPattended, as they often did, with the municipal inspectors in that case. [67] The Court considered the Supreme Court decisions in Thompson Newspapers and McKinlay and highlighted four factors tobe considered when determining whether such an inspection required a warrant: 1. the expectation of privacy and the intrusiveness of the search; 2. the presence or absence of stigma associated with the search; 3. the feasibility of obtaining a warrant; 4. the usefulness of a warrant. [68] The Court in Arkinstall concluded that while the impugned inspections were regulatory in nature, they constituted aconsiderable intrusion into an individual’s reasonable expectation of privacy.

The inspection was of residential premises where anindividual has the highest expectation of privacy. It likely gives rise to more stigma than generally expected from other regulatoryinspections due to the aura of criminality surrounding the search. Obtaining a warrant was feasible and preauthorization by a neutralarbiter would not be futile or meaningless. Accordingly, the Court of Appeal held that the provisions of the Safety Standards Act

authorizing a warrantless inspection infringed on an individual ’ s s 8 Charter rights. [ 69 ] In this case, for the reasons given above, Cormier had a very low expectation of privacy in his telephone communications. [ 70 ] As in Arkinstall , there is an aura of criminality attached to the search here as corrections officers attempt by monitoring communications to determine, among other things, whether the activities of the individuals are criminal in nature. However in Arkinstall , the individuals in question were in their own homes.

Here, any aura of criminality around an inmate in the ERC, as a result of monitoring of phone calls, must necessarily carry a lesser stigma than would be the case for an individual in his home. The residency of an inmate in the ERC, in an of itself, carries with it a significant stigma. Further, the primary focus of the ERC personnel monitoring the phone calls is to determine whether the security of the institution or the safety of any individual is placed at risk by the activities of those being monitored.

As Simms testified, Corrections is separate from the EPS, and Corrections ’ mandate is not to help the police. Detection of criminal activity may result in a disciplinary charge, or if the matter is serious, a call to the EPS. However, it is EPS which determines whether criminal charges will be laid.

It is significant that monitoring of recorded telephone communications in the ERC is not for the purpose of helping the police obtain evidence, though this may be an indirect consequence. [ 71 ] The Court in Arkinstall found that a 48-hour notice provision built into the Safety Standards Act meant the searches could not be said to be exigent.

In the corrections context, the reasonable grounds on which calls will be monitored include those which indicate that inmates were or are conducting activities that might compromise the security of the institution or impact on the safety of individuals within the institution or members of the public outside of the institution. Every moment lost due to delay in confirming information and putting an end to such activities may well result in injury, and the authorities should not have to wait to investigate.

Any delay may compromise the centre ’ s security or bring harm to individuals within the facility or members of the public outside of it. [ 72 ] It is again important to emphasize that there is a significantly reduced expectation of privacy and a reduced level of intrusiveness when dealing with monitoring of the communications of an inmate who has received notices such as those received by Cormier in this case.

The Director is responsible for the security of the institution and the protection of the public and must make the decision to authorize a search in the peculiar circumstances facing the Director at the time the information is received. In an ideal world, reasonable grounds should be determined in all cases by an individual entirely removed from the context. However, the circumstances in a correctional facility are not ideal and are fraught with potential risks and injury to many.

When information is received concerning activities that may compromise the security of the institution or the safety of any individual, there should be no undue delay in investigating and addressing those concerns. Such delays may result in catastrophic consequences. There was no suggestion that someone within the ERC other than the Director would be a more suitable person to consider whether to permit monitoring. Again, I find that the Director is in the best position to assess ERC security. [ 73 ] In

summary, the requirement to obtain a search warrant from an external neutral arbiter is both unnecessary and potentially dangerous when dealing with the activities of inmates in a correctional facility. If I am wrong in finding that the Director is a person capable of acting judicially in relation to decisions to monitor recorded inmate calls, then I would find that an exception to the requirement exists with respect to the decision to monitor recorded telephone calls in correctional facilities pursuant to the Corrections Act . C. Did the appropriate person authorize the monitoring of the telephone calls? [ 74 ]

Section 14.4(2) provides that the “ director of a correctional institution may restrict or monitor inmate communication where the director believes on reasonable grounds ” that one of the three conditions set out therein has been satisfied.

Section 1(

c) of the Act defines the Director of an Institution as “ the executive head of that correctional institution ” . [ 75 ] The regulation provides: 2(1) If the Director is absent or unable to act, the Deputy Director (Operations) of the institution has and may exercise all the powers and functions of the Director.

(2) If the Director and the Deputy Director (Operations) are absent or unable to act, an Assistant Deputy Director of the institution designated by the Director has and may exercise all the powers and functions of the Director.

(3) If the Office of Director is vacant, the Chief Executive Officer may appoint a Deputy Director as Acting Director and that person hasand may exercise all the powers and functions of the Director. [76] The Director of the ERC was Wayne Reddon. He was not available. The Associate Director was Gord Barinecutt. He too wasnot available. Simms then went to Dan Szackacs, the Deputy Director of the ACOB. Szackacs had previously been a Director of theERC.

At the time Simms sought authority from Szackacs, Szackacs was neither the Director nor the Associate Director of the ERC.Quite simply, he was not one of the persons designated by the Act or the regulations as one who could authorize the monitoring ofinmate communications, though he was in a more senior position. [77] Simms relied on the authority given by Szackacs to monitor the telephone communications of Cormier. Arguably, Szackacswas more qualified than either Reddon or Barinecutt to determine whether reasonable grounds existed to authorize monitoring.

He was aformer Director of the ERC and at the time was in a more senior position as Deputy Director of the ACOB in the Ministry of theSolicitor General. Nevertheless, he technically had no legislative power to authorize the monitoring of those communications and themonitoring was, therefore, not properly authorized. Accordingly, it was unlawful and in violation of the s 8 of the Charter rights of theAccused. [78] Gauthier was under the belief that all necessary steps had been taken by Simms to obtain the authorization required tomonitor Cormier’s recorded telephone communications.

He had received the e-mail from Simms advising that Simms had obtainedpermission “from the Boss”. He had no reason to believe that proper authorization had not been obtained. The information that Gauthierrelied upon, and included in the ITO, was properly obtained by him and sufficient to obtain the search warrant. On the evidence beforethe Court, nothing done by Gauthier personally can be seen as contributing to a breach of the s 8 Charter rights of any of the Accused. D.

Were there reasonable grounds to authorize the monitoring? [79] I have determined that Szackacs was not authorized to provide the authority required by the Act, and consequently there wasa breach of s 8 of the Charter. Notwithstanding this breach, the question as to whether there were reasonable grounds to monitor is animportant question, if only for the following analysis under s 24(2) of the Charter as to whether the admission of the evidence wouldbring the administration of justice into disrepute.

The reasonable grounds inform the assessment of the seriousness of the Charter breachwhen determining whether to admit the evidence under s 24(2). [80] As Cory J. noted in R v Wholesale Travel at para 149, context is relevant regarding the delineation of the meaning and scopeof Charter rights, as well as the determination of the balance to be struck between individual rights and society’s interests. [81] In British Columbia Securities Commission v Branch, (SCC), [1995] 2 SCR 3, [1995] SCJ No 32,Sopinka and Iacobucci JJ. stated for the majority at paras 52-53: Therefore, it is clear that the standard of reasonableness which prevails in the case of a search and seizure made in the course ofenforcement in the criminal context will not usually be the appropriate standard for a determination made in an administrative orregulatory context.

The greater the departure from the realm of criminal law, the more flexible will be the approach to the standard ofreasonableness. While the expectation of privacy with respect to criminal matters seems certain, the standard of reasonableness to be applied in theregulatory and administrative realm is less well defined... [82] Therefore, the context in which a person must assess whether reasonable grounds exist informs the standard ofreasonableness to be applied in a given context. I have already determined that ERC inmates have a very diminished expectation ofprivacy in their telephone communications. [83]

Section 14.4(2) provides that the Director of a correctional institution may monitor inmate communications where the

Director believes on reasonable grounds: that the inmate communication contains or will contain evidence of

an act that wouldjeopardize the security of the institution or the safety of any persons, or a criminal offence or a plan to commit a criminal offence; thatthe inmate communication is or will be made to a victim as defined in

section 14.3(1) or to another person who would be likely toconsider the inmate communication intimidating or threatening; or that the monitoring of the inmate communication is otherwisenecessary for the security of the institution or for the safety of inmates, staff or the public. [84] These provisions can be contrasted with the requirements for a wiretap under s 185 of the Criminal Code.

Under s 185, thesworn information to obtain must contain particulars of an offence and names and other information of persons the interception of whoseprivate communications there are reasonable grounds to believe may assist the investigation of the offence.

The affiant usually must alsoattest as to whether other investigative procedures have been tried and failed or why they are unlikely to succeed or impractical given theurgency of the matter. [85] Section 31(3) of the Corrections Act permits the Director to suspend inmate access to any inmate communication system if,in the Director’s opinion, the system is being misused or abused, or the suspension is necessary to maintain the security of the institution.Simms testified that if criminal conduct comes to light as a result of monitoring, disciplinary charges may be laid.

In cases of seriouscriminal conduct, the matter may be referred to the police, but it is up to the EPS whether charges are laid. Simms testified that heconsidered Corrections to be a separate entity from the EPS, and it was not his job to help the police. [86] The tip in relation to Cormier related to alleged criminal activity. However, the person who authorizes monitoring of inmatecommunications in a correctional centre must at all times consider the ongoing security of the institution, the safety of inmates and staffand the safety of members of the public.

Those obligations also inform the applicable standard of reasonableness. [87] All of these factors support a finding that “reasonable grounds” necessary to justify monitoring the telephone calls of aninmate in a correctional centre under s 14.4 are more flexible than those necessary to conduct a wiretap on the phone of an ordinarycitizen. [88] In R v Belnavis, (SCC), [1997] 3 SCR 341, [1997] SCJ No 81 Cory J. stressed at para 27 that there is bothan objective and a subjective component to reasonable grounds. [89] As Szackacs did not have the authority to authorize monitoring, whatever extraneous information he may have had is notnecessarily relevant.

What is relevant is the information conveyed by Simms. It is important to look at that information in the context ofdetermining whether it was sufficient to justify a decision to monitor. [90] Cormier submits that the only ground under s 14.4(2) upon which the monitoring of his telephone communications could beauthorized was that they may contain evidence of a criminal offence, specifically credit card fraud or identity theft.

Cormier argues thatthere was no suggestion that the communications contained evidence relevant to the security of the institution or the safety of any person. [91] This is a very narrow view of the situation. The Director’s mandate is not limited by the nature of the alleged misconduct. Allthat was required for monitoring was a belief on reasonable grounds that Cormier’s communication contained evidence of

an act thatwould jeopardize the security of the institution or the safety of any persons, or that such monitoring was otherwise necessary for thesecurity of the institution or for the safety of inmates, staff or the public. The authorizing individual was not restricted to consideringwhether there were reasonable grounds to believe the communication would contain evidence of a criminal offence. [92] Cormier says that Simms, Szackacs and, ultimately, Gauthier had nothing more than a mere assertion from an unidentifiedinformant of criminal wrongdoing.

Cormier suggests that further information should have been gleaned about the informant beforerelying on the information to monitor his calls or ultimately, to obtain a search warrant. Cormier says that the informant might have beenanother inmate at the ERC or an accomplice of Cormier. In either case, the person may have a strong motive to lie or be seeking somepersonal gain. [93] The information passed on by Gauthier to Simms was that a confidential source had provided information that Cormier andAndrew Drader were conducting credit card frauds through the use of telephones at the ERC.

He understood that they had a largenumber of credit card numbers and information in their possession. The information included the names of the inmates involved, theunderstanding of their backgrounds, their current mailing address and Gauthier’s confirmation of the reliability of the source through the

RCMP. [ 94 ] Gauthier had also been familiar with Cormier for approximately six or seven years and Cormier had a history of being involved in these activities. He passed this information on to Simms, but did not advise Simms of the information received from the RCMP supporting the reliability of the informant. Before he spoke to Szackacs, Simms looked at Cormier ’ s file and confirmed that Cormier had a history of similar offences. [ 95 ] From an objective standpoint, there was information that Cormier and Andrew Drader were involved in credit card fraud.

The information came from an informant and through a proven source trusted by the RCMP, and consequently by Gauthier. While Simms may not have had information as to the relationship between the informant and Cormier or Andrew Drader, nor any information relating to the basis for the RCMP ’ s confidence in the informant ’ s credibility, he did have Cormier ’ s files which he reviewed before seeking authority to monitor.

Those files disclosed that Cormier had a history of this type of activity. [ 96 ] On an objective basis, and given the circumstances in which the authority to monitor was being sought, I find that these constituted reasonable grounds to monitor Cormier ’ s telephone communications. Again, the context in which reasonable grounds must be determined is material.

Citizens living a carefree existence in their homes and communicating freely by telephone to anyone they choose are entitled to the greatest protection possible before these fundamental rights are infringed; inmates confined to a correctional centre have a greatly reduced expectation of privacy in their telephone communications. Greater scrutiny of information and its source must be exercised before infringing on the fundamental freedoms of one who is free.

Greater concern and, consequently, less stringent scrutiny of information and its source need be exercised when investigating potentially dangerous activities by one who is incarcerated. [ 97 ] It is difficult to consider how the Director may have subjectively considered the circumstances that Simms would have related to him in determining whether reasonable grounds existed. However, the Director of the ERC has a mandate to ensure the security of the institution and the safety of inmates, staff and the outside public.

With a more relaxed subjective standard in a correctional facility, it is difficult to envision any person who had the legislative authority to do so denying a request by Simms to monitor the telephone calls of Cormier.

This is particularly so given Szackacs ’ reasonable concern that ongoing fraud by inmates would likely be for the purpose of generating funds for an illicit purpose such as to finance contraband which would ultimately be brought into the ERC. [ 98 ] Szackacs said that based on the individuals involved, the information that pointed to them, and the risks or threat to the facility and the public, he believed that evidence would lie in the recordings that would allow them to stop or eradicate the behaviour. [ 99 ] Szackacs had been the ERC Director.

Arguably, he was practically more qualified to provide the authority required by Simms than someone lower on the hierarchal ladder than the Director or Associate Director. While Szackacs did not have the legislative authority to authorize monitoring, I believe his analysis, based on his years of experience, reflects the subjective analysis that would have been undertaken by the Director or Deputy Director if either one had been available at the relevant time.

Further, and importantly, Simms did have a subjective belief in the necessity to monitor and advised Simms to pass this on, together with the information from Gauthier, to the Director. [ 100 ] In my view, this information constituted reasonable grounds for ERC officials to monitor Cormier ’ s telephone communications and to take steps to ensure the security of the institution and the safety of those inside and outside and put a stop to possible criminal activity emanating from within its four walls. [ 101 ] In all of the circumstances of this case, both objective and subjective reasonable grounds were present to monitor Cormier ’ s telephone communications.

E. Should the evidence be excluded under s 24(2)? [ 102 ] In R v Grant , 2009 SCC 32 at para 71 , the Court set out the following factors to consider in an application for exclusion under s 24(2) of the Charter :

1. the seriousness of the Charter breach; 2. the impact of the breach on the interests of the accused; and 3. society’s interest in the adjudication of the case on its merits. [ 103 ] The Court ’ s role is to balance the assessments under each of these lines of inquiry to determine whether the admission of the evidence would bring the administration of justice into disrepute. [ 104 ] The Accused ask that all of the recordings of telephone conversations together with any evidence derived from the monitoring of those conversations be excluded from the trial in this matter.

They argue that the evidence seized on the searches of the cells of Cormier and the two Drader brothers as well as the later monitoring of telephone calls is evidence that derived from the monitoring of the Cormier telephone conversations and ought to be excluded. i. the seriousness of the breach [ 105 ] A Court must seek to disassociate itself from a wilful or reckless disregard of Charter rights in order to maintain public confidence in the rule of law.

However, where the breach is a minor or technical one in nature or the result of an understandable mistake, public confidence may not be undermined ( R v Grant , 2009 SCC 32 at para 74 and R v Harrison , 2009 SCC 34 at para 22 ). [ 106 ] I have found that the monitoring of the telephone calls took place without proper authorization having been received, as Szackacs did not have authority under the Corrections Act to grant the authorization. The monitoring was therefore unlawful.

Nevertheless, I have also determined that reasonable grounds did exist on both an objective and subjective analysis of the information provided to Simms by Gauthier. [ 107 ] Simms knew that he was required to seek authority to monitor telephone calls. Simms attempted to perfect his obligation by seeking the authority from Szackacs, whom he described as “ the Boss ” in his e-mail to Gauthier.

There is no suggestion that he acted in wilful or reckless disregard of his obligations to seek authorization, nor can it be said that there was an egregious breach of the Accused ’ s privacy rights, as they had a significantly reduced expectation of privacy for telephone communications while they were housed at the ERC. [ 108 ] The Accused suggest that it would have been a less serious breach had Simms sought authority from the most senior officer of the ERC available at the time rather than going to someone who had greater seniority in corrections.

The person they suggest would have been two rungs below Reddon on the ERC hierarchal ladder of authority.

In my view, Simms cannot be faulted for believing that someone with greater seniority, a higher level of understanding of the Corrections Act and significant experience both as a past director of the ERC and as a Deputy Director at the ACOB, would be better suited to provide the authority required than someone below the level of deputy director at the ERC. [ 109 ] In my view, the Charter breach resulting from Simms ’ failure to obtain authorization from one who has the legislative authority to grant it was a minor or technical breach, particularly as I believe the authorization would otherwise have been granted if the Director had been available. [ 110 ] Detective Gauthier swore the ITO for a warrant to obtain recordings of the telephone conversations, the telephone call logs and the items seized from the cells of Cormier and the Draders.

He had no reason to believe that Simms had not taken all steps necessary to perfect the authority he was required to obtain in order to monitor the calls. He testified that he believed that the authorization had been properly granted to Simms. He did not act in wilful or reckless disregard of any Charter rights of the Accused. [ 111 ] Adam Drader argues that the ITO was insufficient to justify the issuance of a warrant for the seizure of the material seized from him.

Aside from the statements relating to the fact that Andrew and Adam shared a cell, the only relevant statement was that the item seized from Adam Drader was “ 1 book which contained some credit card numbers ” .

[ 112 ] Gauthier had not known of Adam Drader ’ s possible involvement at any time before receiving information from Simms as to what was seized from the Draders ’ cell. However, he did know of the involvement of Andrew Drader. Simms advised him that Adam and Andrew shared a cell. Simms testified that a cell search encompasses the entire cell, even where the concern giving rise to the search relates to only one occupant. [ 113 ] Simms told Gauthier about the book seized that belonged to Adam and contained some credit card numbers.

Having considered the actions of Cormier and Andrew Drader, combined with the information received from Simms concerning the book “ which contained some credit card numbers ” , Gauthier had sufficient knowledge to believe that Adam Drader was involved in the credit card fraud activity. Seeking a warrant for the seizure of Adam Drader ’ s book was not a mere fishing expedition. Gauthier ’ s belief that a crime had been committed by Adam Drader was reasonable in the circumstances. [ 114 ] The breach by Simms in this case was not wilful or reckle

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