Commissioner's Directive

Interception of Communications Related to the Maintenance of Institutional Security

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Policy Bulletin 15

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[ Policy Objective  |  Interception - Conditions and Legal Requirements  |  Development of Interception Policy and Systems  |  Control of Interception Systems  |  Use of Portable Interception Equipment and Body-Packs  |  Institutional Responsibility  |  Selectivity of Interception  |  Posting of Signs  |  Portable Interception Equipment - Use By Inmates  | Record of Intercepted Communications  |  Retention of Information  |  Use of Information  |  Use of Tapes as Evidence  |  Transcription of Tapes  |  Interception System - Security of Information  |  Release of Intercepted Information to Other Agencies  |  Interception for Or By Other Agencies  |  Reporting of Intercepted Information ]

POLICY OBJECTIVE

1. To ensure a secure environment in institutions through the interception of communications within the legal bounds set out in the Criminal Code.

INTERCEPTION - CONDITIONS AND LEGAL REQUIREMENTS

2. Interception of private communications shall include video taping, listening to, tape recording or acquiring a communication or acquiring the substance, meaning or purport thereof, and may be undertaken under the following conditions:

1. it is in the interest of institutional security including security of staff, inmates and/or the public;
2. the practice is carefully controlled in conformity with the law; and
3. it is done on a selective basis.

3. Interception of inmate communications may be authorized by the institutional head or designated staff member, when there is reasonable grounds to believe that the communication contains or will contain evidence that meets the criteria set out in section 94 of the Corrections and Conditional Release Regulations. In addition, the interception of correspondence can also be authorized under the Criminal Code if any one or more of the following legal requirements are met:

1. the oral or telephone communication is made under circumstances in which it is not reasonable for the originator to expect that such communication will be a "private communication" as defined in section 183 of the Criminal Code; or
2. signs have been posted indicating that communications may be intercepted, thus creating a condition of implied consent, in keeping with subsection 184 (2)(a) of the Criminal Code; or
3. express consent has been obtained in the form of a written authorization which follows the format set out in Annex "A", in accordance with subsection 184(2)(a) of the Criminal code; or
4. a judicial authorization has been granted in accordance with section 185 for the purpose of law enforcement involving criminal investigations of offences listed in section 183 of the Criminal Code.

DEVELOPMENT OF INTERCEPTION POLICY AND SYSTEMS

4. National Headquarters shall be responsible for the development of policy and the design and management of contracts for the acquisition, installation or repair of any systems or devices utilized in the interception process.

5. National Headquarters shall ensure that contractors and suppliers are licensed in accordance with subsection 191(2)(d) of the Criminal Code.

CONTROL OF INTERCEPTION SYSTEMS

6. National Headquarters shall maintain a register indicating the type and location of all interception equipment and shall conduct an annual on-site review of interception practices and equipment maintenance standards.

USE OF PORTABLE INTERCEPTION EQUIPMENT AND BODY-PACKS

7. The use of all body-pack interception equipment shall normally require approval by the Regional Deputy Commissioner.

INSTITUTIONAL RESPONSIBILITY

8. The institutional head shall develop and promulgate Standing Orders to provide instructions on the following:

• Delegation
  a. Those officers who are delegated to authorize interception of oral or telephone communications referred to in subparagraphs 3 a. and 3 b. above.
• Selectivity
  b. Selectivity of interception as specified in paragraph 9 below.
• Maintenance of Records
  c. Maintenance of records of all interception activity and of the disposition of information gathered through interception.
• Judicial Authorization
  d. The terms and conditions of a judicial authorization to intercept, issued under section 186 of the Criminal Code must be fully complied with, and in particular, if a judicial authorization names a certain interceptor(s) then only the persons so named carry out interceptions under that particular judicial authorization.
• Statement Concerning Privacy
  e. All inmates, at the time of admission, are provided with a statement advising them that any communication except communications with:
  1. their solicitor in the course of solicitor/client relationships;
  2. Members of Parliament, Members of the Senate and the Correctional Investigator and their staffs; may be intercepted as defined in the Corrections and Conditional Release Regulations and in the Criminal Code or acquired through unassisted listening. The inmate will be required to acknowledge receipt of this advisory statement. A refusal to acknowledge by the inmate shall be annotated in his or her records but shall in no way limit the use of interception provided all other conditions of the directive are met.

SELECTIVITY OF INTERCEPTION

9. Interception for intelligence purposes may be carried out when the institutional head or his or her delegate is satisfied:

1. on reasonable grounds that communications between an inmate and a member of the public such as telephone conversations, or communications in the course of a visit, contain or will contain evidence of an action that would jeopardize the security of the penitentiary or the safety of an individual; and
2. that interception of the inmate's communications with the member of the public is the least restrictive alternative available in the circumstances, he or she shall authorize, in writing, that the communications be listened to, or otherwise intercepted by a staff member or a mechanical device.

10. The institutional head shall ensure that a list of those persons for whom the interception of communications has been authorized is kept by the institution. The persons shall remain on the list only for as long as the interception of the communications continue to meet the criteria of section 94 of the Corrections and conditional Release Regulations. The existence of this list does not, however, preclude immediate action by appropriate staff to intercept the communications of other persons when such action is deemed advisable to prevent an incident or to seize evidence.

11. The practice of intercepting communications should normally be restricted to those communications where at least one of the participants is in the line of sight of the person carrying out the interception or who can be seen or identified as a participant in the conversation by a staff member. All reasonable measures shall be taken to ensure that the communication intercepted is that of the selected target.

12. In the case of interception through inter-communication systems, only those systems designed for two-way communication may be intercepted. Cell call systems are not included in that latter group.

POSTING OF SIGNS

13. Signs shall be displayed in all visiting areas, adjacent to all telephones which are used by inmates and any other area where inmates may engage in an oral communication or telecommunication with persons who are neither inmates nor members of the institutional staff. They shall be displayed in sufficient frequency in order to notify those persons, who may have their communications intercepted, that they have no reasonable grounds upon which to have an expectation of private communication.

14. Signs shall be in both official languages and shall read as follows:

ALL ACTIVITIES, INCLUDING CONVERSATIONS AND TELEPHONE COMMUNICATIONS IN THIS AREA, ARE SUBJECT TO MONITORING AND MAY BE TAPED OR VIDEO RECORDED.

COMMISSIONER OF CORRECTIONS

15. To ensure maximum visibility, the above message shall:

1. be engraved in plastic;
2. be displayed in a clear area at least 20 cm from any other sign; and
3. lettering shall be a minimum of 1 cm in height.

PORTABLE INTERCEPTION EQUIPMENT - USE BY INMATES

16. Inmates will not normally be involved in the interception of others' communications.

17. In exceptional cases, the Deputy Commissioner of the region may authorize the use of portable interception equipment by an inmate to intercept other persons' conversations if this is likely to prevent injuries to persons, serious damage to property or other disruptions and will not pose undue risk to the inmate or to other individuals.

18. When the use of portable interception equipment by an inmate is authorized, a report of the circumstances and of the valid information gathered shall be submitted to National Headquarters through Regional Headquarters.

19. Communications between an inmate and a person listed in Annex "B" are privileged, and shall not be read, listened to, or otherwise intercepted by a staff member or a mechanical device, unless the institutional head or his or her delegate is satisfied that:

1. the grounds in paragraph 9 exist; and
2. there are reasonable and probable grounds to believe that the communication will not be or is not properly the subject of a privilege.

20. In the event that the interception of such a communication is deemed necessary the following process shall be followed in the case of:

Solicitors

1. Interception may only be undertaken on the basis of a judicial authorization issued under the provisions of section 186 (2) of the Criminal Code. In such instances the judge to whom an application for a judicial authorization is made must be satisfied that there are reasonable grounds to believe that the solicitor or any other solicitor practising with him/her, any person employed by him/her or any such solicitor or member or the solicitor's household has been or is about to become a party to an offence.
2. When the institutional head authorizes the interception of communications in the case of the Governor General of Canada, Deputy Solicitor General of Canada, Chairman of the National Parole Board, Judges or Magistrates of Canadian Courts, Members of Parliament, Senators, the Correctional Investigator or their staff, the Commissioner shall be informed immediately.

21. Communication involving persons exempted in paragraph 19 above should not normally be carried out in an area or on equipment that has interception devices installed. If, for any reason, these conditions cannot be met, the person should be advised by an officer that such a device has been installed but that it will not be activated.

RECORD OF INTERCEPTED COMMUNICATIONS

22. Whenever inmate communications are intercepted, a record shall be kept. This record shall be maintained at each point that interception is effected. It shall be a cumulative log/record of interception at that interception point, and is to be filed and readily retrievable as such a log.

23. The record shall contain the following information:

1. the date of the communications;
2. the person's name and Finger Print System (FPS) number (if applicable);
3. the name of the caller, or visitor or other party(s) to the communication;
4. significant tape data - the number of the tape, the start and end of the communication;
5. the telephone, table number, or intercommunication system speaker location;
6. the name of the person who authorized the interception;
7. the name of the person who intercepted the communication;
8. whether the communication was recorded and/or summarized; and
9. the disposition of the information.

RETENTION OF INFORMATION

24. Information gathered in the interception process shall be considered intelligence information. Significant intelligence information shall be transcribed and stored in the appropriate data bank in accordance with the normal procedures for sensitive security information.

USE OF INFORMATION

25. The information acquired in interception activity shall normally only be used for the purpose of maintaining the security of the institution or some other penal institution.

26. In the event that other information of a personal nature is intercepted, the person conducting the interception is under an obligation to maintain the confidentiality of the communication and ensure that it is used only for a use consistent with the purpose for which it was collected. Adherence to this is essential to providing privacy protection of persons whose communications are inadvertently intercepted.

USE OF TAPES AS EVIDENCE

27. Information obtained from recorded communications shall not normally be used as evidence. If, however, tapes are to be used as evidence for any form of administrative or legal hearing, the following conditions shall be met:

1. a new tape shall be used or a certification made that any used tape was clear; and
2. it shall be substantiated that the interception was made lawfully, that is, proof shall be available that one of the two parties had given consent, expressed or implied, to the interception of the conversation or that a judicial authorization had been obtained. Records shall be kept which clearly identify witnesses who may give such proof.

TRANSCRIPTION OF TAPES

28. When a tape is transcribed, it shall include all the conversation as recorded.

29. The individual making the transcription should be clearly identified on the transcription.

INTERCEPTION SYSTEM - SECURITY OF INFORMATION

30. All reference to the development, functioning and capabilities of this intelligence gathering system shall be designated as PROTECTED.

31. Staff shall not deny that interception is carried out. However, when asked direct questions about the system itself, staff may describe general policy but shall not elaborate on the development, functioning or capabilities of any interception system. However, when an inmate's communication is intercepted, the institutional head or delegated staff member shall, in accordance with the provisions of section 94 of the Corrections and Conditional Release Regulations and with Commissioner's Directives 085, provide the offender with the reasons for the interception and an opportunity to make representations.

RELEASE OF INTERCEPTED INFORMATION TO OTHER AGENCIES

32. When it is necessary to release intelligence information gathered through interception to other agencies of the criminal justice system, the information shall relate only to a specific person.

33. No unreviewed tape or information shall be released. Normally, only the transcript of an intercepted conversation shall be released. Such releases shall be governed by the release and disclosure guide issued to amplify the Privacy Act.

INTERCEPTION FOR OR BY OTHER AGENCIES

34. The Service will not engage in deliberate interception for another agency unless there is a threat to the security of the penitentiary or the safety of any person.

35. When interception is conducted by another agency, the institutional head shall ensure that the appropriate judicial authorization has been granted and National Headquarters shall be advised of the authorization and the actual interception activity

REPORTING OF INTERCEPTED INFORMATION

36. All intelligence information obtained through interception shall be reported to National Headquarters.

Original signed by
Ole Ingstrup, Commissioner

 

ANNEX A

INTERCEPTION OF COMMUNICATIONS OF INMATES

PROTECTED WHEN COMPLETED

 

TO : Institutional head

FROM : (Inmate name)

EXPRESS CONSENT TO INTERCEPT A PRIVATE CONVERSATION

In consideration of the fact that I have been granted permission to make a telephone call to ______________________________________ (person and place) on ________________________ (date), I acknowledge that this telephone conversation may be monitored and recorded.

I give my express consent for this interception of a private communication.

 

_________________________

SIGNED

 

c.c. Officer responsible for preventive security

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ANNEX B

PRIVILEGED COMMUNICATIONS

For the following individuals and their staff, the requirements in paragraphs 19 and 20 apply.

1. Solicitor General of Canada

2. Deputy Solicitor General of Canada

3. Commissioner of Corrections

4. Chairman of the National Parole Board

5. Correctional Investigator

6. Assistant Commissioner, Accountability and Performance Measurement

7. Governor General of Canada

8. The Canadian Human Rights Commission

9. Commissioner of Official Languages

10. Information and Privacy Commissioners

11. Members of the House of Commons

12. Members of the Senate

13. Members of the Legislative Council for the Yukon or the Northwest Territories

14. Members of Provincial Legislatures

15. Provincial Ombudsmen

16. Consular Officials

17. Judges and Magistrates of Canadian courts (including their Registrars)

18. Legal Counsel

19. Privacy Coordinator of a Federal Department