R v Drader, 2012 ABQB 469

Court of Queen ’ s Bench of Alberta Citation: R v Drader, 2012 ABQB 469 Date: 20120719 Docket: 110234887Q2 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Adam Neil Drader, Andrew Martinus Drader and Robert Archie Cormier Applicants/Accused Corrected judgment: A corrigendum was issued on September 4, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Supplementary Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction

[ 1 ] On March 9, 2012, I issued Reasons for Judgment at 2012 ABQB 168 ( Drader #1 ) , following a voir dire , allowing the admission into evidence of certain recorded and monitored communications of Robert Cormier while he was an inmate at the Edmonton Remand Centre (ERC). [ 2 ] On April 13, 2012, the Supreme Court of Canada issued a decision in the case of R v Tse , 2012 SCC 16 . On June 14, 2012, Mr. Cormier applied to reopen the voir dire in order to argue that the Judgment in Tse compels me to reverse my earlier decision . I allowed him to argue the issue.

Written submissions were provided by counsel, followed by oral argument on July 16, 2012. II. Positions of Cormier and the Crown [ 3 ] Cormier argues that the decision in Tse applies beyond the facts of that case. He submits that it leads to the conclusion that s. 14.4 of the Corrections Act , RSA 2000, c C-29 and the relevant provisions in the Correctional Institutional Regulation , AR 205/200 are unconstitutional. [ 4 ] The Crown responds that Tse does not affect my earlier decision.

The Crown emphasizes that the legislation at issue in Tse allowed the unauthorized interception of private communications between ordinary citizens who have a high expectation of privacy. In contrast, the legislation at issue in the case at bar allows the interception of communications by an inmate who has only a minimal expectation of privacy. Further, those inmates receive ample prior notice that such communications are subject to recording and monitoring. III. R v Tse [ 5 ] The Court in Tse considered whether s. 184.4 of the Criminal Code breached s. 8 of the Charter .

That provision allows a peace officer to intercept a private communication where: (

a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision under that Part of the Code ; (

b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and (

c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm. [ 6 ]

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. [ 7 ] The Supreme Court emphasized at para 61 that s. 184.4 is an emergency provision which obviates the need for a peace officer to obtain prior judicial authorization in circumstances of dire emergency. However, it still requires the police to make efforts, quickly where possible, to obtain a judicial authorization. The Court concluded: 94

Section 184.4 is an emergency provision. It allows for extreme measures in extreme circumstances. It recognizes that on occasion, the privacy interests of some may have to yield temporarily for the greater good of society -- here, the protection of lives and property from harm that is both serious and imminent. Parliament has included stringent conditions to ensure that the provision is only used in exigent circumstances. In our view, these conditions effect an appropriate balance between an individual's reasonable expectation of privacy and society's interest in preventing serious harm. ...

95 In its present form however, s. 184.4 contains no accountability measures. That, in our view, is fatal and constitutes a breach of s. 8of the Charter. [8] In short, the Court held that to the extent that s. 184.4 allowed for the interception of private communications without theconsent of parties or judicial pre-authorization, it did not offend the Charter. However, it breached s. 8 as there was no requirement forpost-interception notice, and failed in this regard to meet the proportionality analysis in R v Oakes, (SCC), [1986] 1 SCR103. IV.

Applicability of Tse to the Case at Bar [9] In the case at bar, advance notice is given to each inmate of the recording and possible monitoring of their telephone calls.Each one is asked to sign a form on admission to the ERC indicating that all telephone communication is subject to monitoring andrecording unless privileged. Signs are posted prominently in the intake area and above each set of unit telephones indicating thattelephone communications are subject to monitoring and may be recorded unless privileged.

Every telephone call between an inmate andanother party has a pre-recorded message played before the conversation starts indicating that the call is subject to recording andmonitoring unless privileged.

Finally, the inmate manual available to each inmate indicates that all telephone calls are subject torecording and monitoring unless privileged and further, that all telephone communication is recorded (Drader #1 at para 49). [10] I concluded in Drader #1 that ERC inmates have a very limited expectation of privacy in their telephone communications.Their informational privacy concerns arise in the ERC, a place 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 of which is otherwise necessary for, thesecurity of the institution or the safety of any persons (Drader #1 at para 56). [11] It is noteworthy that s. 184.4 of the Criminal Code is contained in

Part VI - Invasion of Privacy. Private communication isdefined in s. 183 under

Part VI as one “that is made under circumstances in which it is reasonable for the originator to expect that it willnot be intercepted by any person other than the person intended by the originator to receive it ...” The private communicationsintercepted by the police in Tse occurred between an alleged kidnapping victim and his daughter.

The parties to the interceptedcommunications were private citizens who clearly had a very high expectation of privacy in relation to their private communications.Such private citizens are not aware of any risk that their calls are subject to being recorded or monitored. [12] One of the parties to the intercepted communications in the case at bar was the accused Cormier, an inmate at the ERC whowas forewarned and who had a very limited expectation of privacy in his telephone communications.

As mentioned above, notice of therecording and possible monitoring of inmate telephone calls is provided to each inmate as well as to the person with whom theycommunicate before the calls are recorded or monitored. A private citizen normally has no expectation that someone will surreptitiouslylisten to, record or monitor their telephone calls. The advance notices to the inmates and those speaking with them do, or should, result inthe contrary expectation.

That is, the former has a reasonable expectation of privacy in his or her private communications whereas thelatter have, at best, a very reduced expectation of privacy. [13] I conclude that the privacy interests at stake for inmates’ communications at the ERC are not “important privacy interests” ascontemplated by the Court in Tse. The telephone communications by Cormier were not made in circumstances in which it wasreasonable for him to expect that they would not be intercepted by a person other than the intended recipient.

On the contrary, they weremade in circumstances in which it was reasonable for him to expect that they would be recorded, and that they very well may be listenedto by persons other than the intended recipients. Indeed, as referenced in para 61 of Drader #1, Cormier’s response to a question from anunidentified speaker as to whether it was good to communicate over the telephone was that he was confident that the authorities hadmore important things to do than worry about him.

This exchange exhibits a clear understanding by both Cormier and the recipient of therisk that the calls were being recorded and may be monitored. [14] The Court in Tse held that an accountability mechanism was necessary to protect the important privacy interests at stake inthat case. It cited Hunter v Southam, (SCC), [1984] 2 SCR 145 at 166 for the proposition that a provision authorizingan unreviewable power is inconsistent with s. 8 of the Charter, noting that accountability is largely achieved under

Part VI of the Codeby means of after-the-fact notice and reporting. The Court opined that in cases where prior authorization is not essential to a reasonablesearch, additional safeguards may be necessary in order to help ensure that the extraordinary power is not being abused, explaining:

85 ...Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power. There is no other measure in the Code to ensure specific oversight of the use of s. 184.4 .

For s. 8 purposes, bearing in mind that s. 184.4 allows for the highly intrusive interception of private communications without prior judicial authorization, we see that as a fatal defect... [ 15 ] It is important to note that communication systems at the ERC are established under s. 31 of the Correctional Institutional Regulation for the express dual purposes of providing inmates with reasonable access to communication systems, and ensuring the security of the institution and the protection of the public.

The Director is authorized under s. 31(3) 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.

Under s. 31.5, an inmate communication must not be monitored except on reasonable grounds described in s. 14.4(2) of the Act , and where the inmate has first been given reasonable notice that the communication may be monitored. [ 16 ] Therefore, unlike private telephones and cell phones, inmates ’ use of the ERC communications system is, from the outset, limited and conditional. They and those with whom they communicate are nevertheless provided with ample notice that their communications may be monitored.

In my view, the transparency which the Supreme Court sought to ensure in Tse through after-the- fact notice is achieved in this regime through alternate means. [ 17 ] Cormier also argues that the system for excluding privileged calls from being recorded or monitored is flawed. He submits that the system only prevents the recording of calls to the office number of a lawyer, and only for the lawyers who belong to the Criminal Trial Lawyers Association (CTLA).

He points out that lawyers often have home and cell phone numbers from which they may communicate with their ERC clients, and some lawyers do not belong to the CTLA. [ 18 ] First, it bears noting that Terry Garnett, Executive Director of the Alberta Centre Operations Branch, testified that they had “ a list of phone numbers for all the lawyers and all the other agencies, and those numbers are blocked ” from being recorded. When an inmate calls any of those numbers, no recording is made.

If a blocked call is inadvertently recorded, it must not be monitored and must be destroyed immediately (as required by s. 31.2(2) of the Correctional Institutional Regulation ). The lawyer can also provide the ERC with all of the numbers that he or she uses in communicating with inmates.

This further ensures that privileged communications will not be inadvertently recorded or monitored. [ 19 ] Second, it must be emphasized again that each and every telephone call originated by an inmate at the ERC to a number that is not blocked from being recorded is prefaced by a recorded voice indicating that the call is subject to recording and monitoring. Both parties to the call hear this recording. If the inmate calls an unblocked number for a lawyer, both the inmate and the lawyer will be alerted to the recording and possibility of monitoring.

The client owns the privilege and he or she can either hang up and place another call or continue the call. It is his or her choice after both the originator and the recipient have heard the recording. [ 20 ] In my view, the controls relating to privileged calls are not flawed so as to render the recording and monitoring of inmate communications unconstitutional. V.

Conclusion [ 21 ] The Supreme Court in Tse emphasized the necessity of an effective accountability mechanism where a private citizen ’ s high expectation of privacy has been compromised by police exercising extraordinary powers of unauthorized interception of private communications under s. 184.4 of the Criminal Code . [ 22 ] The absence of after-the-fact notice, such as that contemplated in Tse , is not fatal to the constitutionality of s. 14.4 of the Corrections Act and the Correctional Institutional Regulation . Inmates’ use of the ERC communications system is limited and conditional.

The inmates in question have only a minimal expectation of privacy and they, as well as those with whom they communicate, know the calls are subject to recording and monitoring.

[ 23 ] The application to reverse Drader #1 in light of Tse is dismissed. Written submissions tendered June 29, July 4, July 6, and July 13, 2012. Heard on the 16 th day of July 2012. Dated at the City of Edmonton, Alberta this 19 th day of July 2012. Eric F. Macklin J.C.Q.B.A. Appearances: Robert Normey for the Respondent Crown Erika Bottcher for the Respondent Crown Philip Lister, Q.C. for the Applicant, Robert Cormier Kathryn A. Quinlan for the Applicant, Adam Drader Arnold E.F. Piragoff, Q.C. for the Applicant, Andrew Drader _______________________________________________________ Corrigendum of the Supplementary Reasons for Judgment of

The Honourable Mr. Justice Eric F. Macklin _______________________________________________________ Counsel, Robert Normey was added in Appearances.