Attorney-Client Privilege Violated, Canadian Class Action Claims

(CN) – A prison inmate claims in a proposed class action that the Canadian government systematically records privileged communications between prisoners and their lawyers in federal institutions.

Adrian Philip filed the action against the Attorney General of Canada in Federal Court, claiming the Canadian government breached inmates’ privacy rights and rights under the country’s constitution. He’s imprisoned at Collins Bay Institution, a federal prison in Kingston, Ontario.

Philip claims the Correctional Service of Canada intrudes upon inmates’ privacy rights “by listening to, recording, and divulging to their parties the contents of private telephone conversations between inmates and their respective lawyers.”

“Nothing is more likely to have a ‘chilling’ effect  upon the frank and free exchange and disclosure of confidences, which should characterize the relationship between inmate and counsel, than knowledge that what has been said will be listened to or recorded by some third person, divulged to other parties, or used against the inmate,” the claim states.

Philip claims he was charged with more crimes while already in jail, which limited his access to the institution’s telephone system “exclusively for the purposes” of privileged conversations with his lawyers. He claims he learned that staff at the prison had listened to and recorded his calls in August 2017, and used the information to prosecute him for additional offences.

In a phone interview with Courthouse News, Philip’s lawyer Rajinder Sahota, with Acheson Sweeney Foley Sahota, was reluctant to elaborate on the lawsuit’s specifics, such as how his client found out about the recordings.

“At this stage we’re in the early days. The pleadings themselves set out the crux of the factual argument that we’re making. We didn’t really hold back,” he said. “What I can tell you is that the concerns that are raised are systemic, they’re widespread, and they exist from coast-to-coast in all federal correctional institutions.”

Sahota said he didn’t have numbers to estimate the potential size of the class, but said it’s “going to be a substantial number” given the scope of the case and time frame because as far as his firm knows, “it’s never been any other way.”

“It struck us as something that attacks the very core of our legal system and the integrity of our legal system is put into question when this type of conduct occurs,” Sahota said. “But the fact that solicitor-client conversations are being recorded, particularly when the government is aware that those kind of conversations are occurring given the way the process has been set up by the government to record all conversations and have inmates indicate who they are calling and for what purpose, that’s what strikes this as particularly egregious.”

Philip seeks class certification and a declaration that the Canadian government breached its duties of care and fiduciary duties to inmates as well as their privacy rights and rights under the Canadian Charter of Rights and Freedoms and damages exceeding $50,000.

A Correctional Service of Canada spokeswoman pointed to the agency’s policy that says “calls between inmates and privileged correspondents are normally confidential. They may however be subject to interception” if certain conditions under corrections regulations and directives are met.

 

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