(Lord Francis Bacon, Statesman and Philosopher)
For any criminal defence lawyer who ever suspected Big Brother was eavesdropping on his or her solicitor-client communications, your suspicions may not be unwarranted.
In the case of R. v. Jamie Bacon, evidence was presented that Surrey, British Columbia prison officials recorded upwards of 37 solicitor-client telephone calls, and listened to a number of them for at least several seconds prior to turning down the volume. Bacon's lawyer, Kimberly Eldred argued the contravention of the solicitor-client relationship was completely unacceptable considering the accused was only entitled to call his lawyer, and nobody else. What is even more troubling is that every time Ms. Eldred called, an electronic message was played indicating that her solicitor-client communications would "not" be monitored or recorded.
Responding to the allegations, State officials advanced the usual line of ridiculous excuses. Explanations ranged from the typical "oops, we didn't mean to" variety, to those in the "it's not a big deal" category. According to deputy warden Steve Phillips, lets not get our knickers in a twist, for they only listened to a few calls for several seconds before realizing Mr. Bacon was chatting with his lawyer. Though some may not appreciate the scatology, "bullshit" is really the most apt characterization of Phillips' position.
To be fair, I suppose even the most ethical State agent could stumble upon a solicitor-client conversation once, or perhaps even twice in the right circumstances, but there is no good faith when it happens 37 times on a telephone number registered to the inmate's lawyer. With this in mind, it is difficult to minimize Ms. Eldred's contention that the system enabled intelligence gathering of a clandestine nature.
The broader question concerns whether this discovery of obvious impropriety in Surrey, British Columbia is the exception or the norm?
In Calgary, Alberta, most defence lawyers understand speaking to clients on telephones is a dangerous proposition. Why do I say this, because we don't trust police are not listening. Even more troubling, some of us don't trust that a great many warrants are validly granted.
Loosely speaking, Calgary is "wired". The use of wiretaps and other electronic surveillance is becoming evermore prevalent. Unfortunately, in light of what many defence lawyers know about the process of acquiring warrants, there are legitimate concerns that search warrants are granted with the level of judiciousness defined by our common law . Though I may be derided for saying so, there appears to be an ever increasing lackadaisical approach on the part of judicial officers to authorizing all types of search warrants, including those to intercept private communications. As a criminal defence lawyer, I have probably analyzed more warrants and affidavits to obtain search warrants than a great number of magistrates, and it always baffles me when I see a warrant granted after a judicial officer has spent a whopping 10 - 20 minutes reading dozens of pages packed full of information, before granting a search to permit police to invade privacy on reasonable grounds.
Some searches are highly intrusive. On the basis of a search warrant police can enter a private dwelling house, draw DNA, listen to conversations on a telephone, plant tracking devices and may even be entitled to covertly enter a particular place on multiple occasions for the purpose of fishing for evidence. Many search warrants are driven by confidential source data -- information which an accused can never unravel except in rare cases where innocence is at stake. Participate in the preverbal defence lawyer photocopier chatter, and you may even hear concerns that so-called confidential informants are fabricated "Fuzzy Dunlops" or perhaps even police officers who overheard conversations captured over a wire. Even more troubling, I am aware of at least two cases where judges authorized search warrants on the basis of "unsworn" information. This is by definition, Big Brother.
In light of what is arguably a more relaxed approach to granting search warrants, it is highly conceivable that more searches are taking place. Searches of a clandestine variety (such as those captured on a phone tap) may never be discovered by anybody outside the police, crown or the authorizing magistrate, but the information uncovered may be limitless. Since just about every wiretap contains a basket clause enabling police to extend a search to encapsulate other telephones captured by the initial tap, the scope of any wiretap investigation can grown to leviathan proportions.
Unconstitutional searches of the non-clandestine variety are also becoming more common. For example, the initial search of Mr. Bacon's residence was conducted without a search warrant.
In Calgary, defence lawyers are accustom to seeing this type of conduct. It is not particularly unusual for police to enter private spaces without warrants and later -- through the trained eloquence of a Crown Prosecutor -- try to convince judges they were fixed with a good faith belief they were entitled to do so. Interestingly, this is precisely what the Crown argued in Mr. Bacon's case.
Since the Charter of Rights has been in existence for greater than three-decades, I often have a difficulty believing in this so-called good faith. Many, however, do not. Prosecutors advance good faith arguments on a regular basis; but given the casual approach involved in some of the conduct they seek to justify on good faith, one is left to wonder about the sincerity of their position. After all, there is a difference between making argument for the sake of argument and making argument on the basis of sound principle.
Whatever the case, the prying ears of prison officials monitoring solicitor-client protected communications (a hallmark of our legal system) highlights just how casual State authorities are when it comes to disregarding our most basic Constitutional protections. When police stroll into a home without a warrant, search people without valid grounds to arrest or obtain search warrants on the basis of inflammatory information designed to bamboozle the authorizing magistrate, citizens should immediately become concerned about the State's interest in protecting the Constitutional rights of Canadians. Though anybody can justify shortcutting basic principles in the name of crime prevention, such tyranny of good intentions leads our civilization down a stark path to just plain tyranny.
Obviously these are bad habits that must be avoided.
David G. Chow
Criminal Defence Lawyer