Commissioner's Directive

Interception of Inmate Communications

RESPONSIBILITIES

1. The Director General, Security Branch, develops the policy and procedures related to the interception of inmate communications.
2. The Director General, Technical Services and Facilities, will:
   1. design and manage contracts for the acquisition, installation, or repair of any systems or devices utilized in the interception process
   2. ensure that contractors and suppliers are licensed in accordance with paragraph 191(2)(d) of the Criminal Code
   3. develop the maintenance standards for all the interception-related equipment in the institutions.
3. The Assistant Deputy Commissioner, Institutional Operations, will:
   1. ensure that a process is in place at the regional level for reporting intelligence information
   2. notify and report immediately judicial or national security authorization orders to the Director General, Security Branch
   3. ensure that a process is in place for releasing intelligence information to another agency.
4. The Institutional Head's authorities are detailed in the CCRR sections  94 and  95 (found in Annex  C of this directive).
5. The Institutional Head will also ensure that:
   1. Standing Order is in place detailing the procedures for interception of inmate communications
   2. signs are displayed where applicable, stating that communications may be intercepted.
6. The Security Intelligence Officer (SIO) will:
   1. gather and provide details or evidence for requesting authorization to lawfully intercept an inmate's communications pursuant to section  94 of the CCRR
   2. maintain the Record of Intercepted Communications (CSC/SCC  1036) for the period for which the intercept is authorized
   3. ensure the information gathered through interception is recorded and maintained pursuant to CD  568-2 ’ Recording and Sharing of Security Information and Intelligence
   4. advise the Regional Administrator, Intelligence, of any judicial or national security intercept authorizations.
7. Any CSC staff member that has information that would warrant interception of inmate communications must immediately inform the Security Intelligence Officer of their suspicions.
8. Should a Law Enforcement Officer present a judicial or a national security order to any CSC staff member, they must immediately direct and refer them to the SIO or the Institutional Head.

PROCEDURES

Implied Consent ’ Displaying Signs

9. Signs must be:
   1. displayed in both official languages stating that private communications are not to be expected
   2. highly visible
   3. displayed in inmate visiting areas, in telephone areas, and in any other area where inmates may engage in verbal communication or telecommunication with persons other than inmates or staff.

Private Communications

10. Upon admission, all inmates must be given the Statement Concerning Private Communications (CSC/SCC  1035). This form advises them that any communications may be intercepted or acquired through unassisted listening subject to the exceptions listed in the schedule referred to in subsection  94(2) of the CCRR. See Annex B for the schedule.
11. The inmate must acknowledge receipt of the Statement Concerning Private Communications form. Refusal to acknowledge will be noted in the inmate's file. It will in no way limit the use of interception, provided that all other applicable conditions of the law are met.

Express Consent ’ Interception of Private Conversations

12. The Institutional Head or Deputy Warden may obtain an inmate's written consent to intercept a private communication in accordance with subsection 184(2)(a) of the Criminal Code. Express Consent to Intercept a Private Conversation (CSC/SCC  1453) form must be completed.

Authorization to Intercept Inmate Communications

13. Only the Institutional Head or Deputy Warden may authorize interception of an inmate's communications. Authorization to Intercept Inmate Communications (CSC/SCC  1454) must be filled out in its entirety and kept by the SIO.
14. The initial interception can only be authorized for a maximum period of 30 days. If required, the interception can be extended for up to 2 additional periods of 15 days. All extensions must be authorized by the Institutional Head or Deputy Warden, prior to the expiry of the existing authorization.
15. The Institutional Head or Deputy Warden must maintain a list of persons for whom the interception of communications has been authorized. The inmates should remain on the list only for as long as the grounds for intercepting the communications, pursuant to subsection  94 of the CCRR, continue to be met.

Authorization to Intercept Privileged Communications

(See subsection  94(2) of the CCRR and Annex  B.)

16. In accordance with subsection 186(2) of the Criminal Code, any interception of communications between an inmate and a lawyer, solicitor, or legal counsel must be undertaken on the basis of a judicial authorization.
17. Only the Institutional Head may authorize the interception of privileged communications in the case of an individual listed in Annex  B. In the event that the interception is deemed necessary by the Institutional Head, he/she must have reasonable grounds to believe that:
    1. the grounds referred to in subsection  94(1) of the CCRR exist
    2. the communications are not or will not be the subject of a privilege.
18. Privileged communications must not take place in an area that has interception devices installed. If, for any reason, this condition cannot be met, the person will be advised by staff that such a device has been installed but that it will not be activated.
19. The Institutional Head must ensure that the Director General, Security Branch, is promptly informed via the Assistant Deputy Commissioner, Institutional Operations, when he/she authorizes the interception of communications in the case of an individual listed in Annex  B.

Judicial or National Security Authorization ’ Working with Other Agencies

20. The Service will not engage in deliberate interception of communications for another agency unless there is a threat to the security of the institution, to national security, or the safety of any person.
21. The terms and conditions of a judicial authorization to intercept communications issued under section  186 of the Criminal Code must be fully complied with. Only the persons named in the authorization to intercept communications are entitled to carry out the interceptions.
22. The Institutional Head will:
    1. ensure that he/she has judicial authorization, in writing, before conducting an interception of communications on behalf of another agency
    2. promptly notify the Director General, Security Branch, of the details of the authorization via the Assistant Deputy Commissioner, Institutional Operations
    3. ensure that the conditions of the judicial authorization are met in its entirety. When it comes time to release the information, he/she will ensure the information relates only to the specific person.
23. The Security Intelligence Officer will:
    1. conduct the interception as per the judicial authorization
    2. advise the Assistant Deputy Commissioner, Institutional Operations, of any judicial or national security intercept authorizations and record any information related to institutional security or the safety of any person if that information is released back to the Service from the law enforcement body requesting interception.
24. Upon review, recordings of intercepted communications performed under judicial or national security authorizations will be transferred onto storage media (CD/DVD) and provided to the Law Enforcement Officer identified in the judicial authorization as having requested the interception. Such releases will be governed by the applicable provisions of the Privacy Act.

Recording, Reporting and Retention of Information

25. The Security Intelligence Officer will:
    1. ensure that all information gathered through the intercept process is transferred onto storage media (CD/DVD) and retained as per CD  568-2 ’ Recording and Sharing of Security Information and Intelligence
    2. maintain a record of all interception activity and the disposition of the information gathered through interception using Record of Intercepted Communications (CSC/SCC  1036)
    3. report intercepted activities to the Director, Intelligence Operations, Policy and Programs, via the Assistant Deputy Commissioner, Institutional Operations.
26. The SIO will ensure the recording of the communications transferred on storage media:
    1. is the entire unedited conversation
    2. includes the date, name, and title of the individual who made the transcription.

Use of Information

27. The information acquired through an interception activity is for the purpose of preventing acts that would jeopardize the security of the penitentiary or the safety of any person.
28. 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 the purpose for which it was collected. This is essential in order to maintain the privacy of persons whose communications are inadvertently intercepted.

Information as Evidence

29. Information obtained from recorded communications must not normally be used as evidence. If, however, recordings are to be used as evidence for any form of administrative or judicial procedure, the following conditions must be met:
    1. the Security Intelligence Officer will ensure evidence continuity is maintained as per CD 568-4 ’ Preservation of Crime Scenes and Evidence
    2. a new media storage device (CD/DVD) must be used to transfer and store the recorded communications
    3. it must be substantiated that the interception was made lawfully, that is, proof must be available that one of the two parties had given expressed consent to the interception of the conversation, the Institutional Head or Deputy Warden has signed an Authorization to Intercept Inmate Communications (CSC/SCC  1454), or that a judicial authorization had been obtained.    
30. Records must be kept that clearly identify witnesses who may give proof pertaining to the interception and investigation.  

Notify Inmate of Interception

31. The SIO will use the Notice of Interception of Communications (CSC/SCC  1135) to inform the inmate of the reasons for the interception. It will be given to the inmate following an interception either:
    1. promptly upon completion of the interception, or
    2. if the Notice of Interception of Communications would adversely affect an ongoing investigation, upon completion of the investigation.
32. The inmate will have an opportunity to make a written representation to the Institutional Head with respect to this decision.

Interception System ’ Security of Information

33. All information related to the development, capabilities and implementation of the systems or devices utilized in the interception is PROTECTED. Access is restricted to authorized individuals whose duties require access on a “need-to-know” basis.  

ENQUIRIES

34. Strategic Policy Division
    National Headquarters
    Email: Gen-NHQPolicy-Politi@csc-scc.gc.ca

Commissioner,

Original signed by:
Don Head

ANNEX A

CROSS-REFERENCES AND DEFINITIONS

CD 085 ’ Correspondence and Telephone Communications
CD 568 ’ Management of Security Information and Intelligence
CD 568-2 ’ Recording and Sharing of Security Information and Intelligence
CD 568-4 ’ Preservation of Crime Scenes and Evidence
CD 568-8 ’ Authority for Use of Surveillance Equipment

DEFINITIONS

Authorization: written approval by the person with the legal right to approve an action.    

Evidence: anything that tends to prove or disprove an alleged fact.

Express consent: consent that an individual has given in writing.  

Implied consent: indirect indication that one has consented.

Judicial authorization: written order by a judge or judicial officer that permits a law enforcement officer to intercept the communications of a specified person.

National security authorization: written approval of judicial authorization that permits law enforcement officials to intercept the communications of an individual or group of individuals suspected of terrorist activities.

Need to know: information that is pertinent and necessary to an individual performing his/her duties.

ANNEX B

PRIVILEGED COMMUNICATIONS

Pursuant to CCRR, section  94(2)

1. Governor General of Canada
2. Solicitor General of Canada (Minister of Public Safety and Emergency Preparedness)
3. Judges and Magistrates of Canadian courts (including their Registrars)
4. Members of the Senate
5. Members of the House of Commons
6. Consular Officials
7. Members of provincial legislatures
8. Members of the Legislative Council for the Yukon or the Northwest Territories
9. Deputy Solicitor General of Canada (Deputy Minister of Public Safety and Emergency Preparedness)
10. Commissioner of the Correctional Service of Canada
11. Chairperson of the Parole Board of Canada
12. Commissioner of Official Languages
13. The Canadian Human Rights Commission
14. Information Commissioner
15. Privacy Commissioner
16. Provincial ombudsperson
17. Assistant Commissioner, Audit and Investigations of the Correctional Service of Canada
18. Privacy Co-ordinators of federal departments
19. Correctional Investigator of Canada
20. Legal counsel

ANNEX C

AUTHORITIES SECTIONS

Corrections and Conditional Release Regulations (CCRR)

94.

1. Subject to subsection (2), the institutional head or a staff member designated by the institutional head may authorize, in writing, that communications between an inmate and a member of the public, including letters, telephone conversations and communications in the course of a visit, be opened, read, listened to or otherwise intercepted by a staff member or a mechanical device, where the institutional head or staff member believes on reasonable grounds
   1. that the communications contain or will contain evidence of
      1. an act that would jeopardize the security of the penitentiary or the safety of any person, or
      2. a criminal offence or a plan to commit a criminal offence; and
   2. that interception of the communications is the least restrictive measure available in the circumstances.
2. No institutional head or staff member designated by the institutional head shall authorize the opening of, reading of, listening to or otherwise intercepting of communications between an inmate and a person set out in the schedule[.^{Footnote *}] by a staff member or a mechanical device, unless the institutional head or staff member believes on reasonable grounds:

1. that the grounds referred to in subsection  (1) exist; and
2. that the communications are not or will not be the subject of a privilege.

3. Where a communication is intercepted under subsection (1) or (2), the institutional head or staff member designated by the institutional head shall promptly inform the inmate, in writing, of the reasons for the interception and shall give the inmate an opportunity to make representations with respect thereto, unless the information would adversely affect an ongoing investigation, in which case the inmate shall be informed of the reasons and given an opportunity to make representations with respect thereto on completion of the investigation.

95.

1. The institutional head or a staff member designated by the institutional head may prevent an inmate from communicating with a person by mail or telephone if
   1. the institutional head or staff member believes on reasonable grounds that the safety of any person would be jeopardized; or  
   2. the intended recipient of the communication, or the parent or guardian of the intended recipient where the intended recipient is a minor, submits a request in writing to the institutional head or staff member that the intended recipient not receive any communication from the inmate.
2. Where an inmate is prevented under subsection  (1) from communicating with a person, the institutional head or staff member designated by the institutional head, as the case may be, shall promptly inform the inmate, in writing, of the reasons and shall give the inmate an opportunity to make representations with respect thereto.