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This article was published 4/9/2014 (757 days ago), so information in it may no longer be current.
Provincial jail officials will soon have the power to record phone calls made by inmates even if crime is not being discussed.
And if there's a hint of a criminal act mentioned during the conversation, officials will be able to keep a recording indefinitely without the inmate's knowledge.
The Selinger government says the regulations, to take effect Oct. 1, are needed so correctional officers have a greater ability to uncover drug smuggling and to find out if inmates are talking to someone they're prohibited from contacting.
The rules are aimed at curbing three-way calls in which an inmate calls an approved number and has that person dial in another number that isn't approved. It's how an inmate can speak to an ex-spouse, gang associate or even a witness.
The changes reflect current practice in provincial jails, the government said.
It does not affect conversations with a lawyer that are privileged.
It doesn't apply to federal prisons. Under federal regulations, communications can be intercepted only if the institution head or a staff member believes they will contain evidence of a crime or could jeopardize the security of the penitentiary.
The John Howard Society, which advocates for inmates, says the incoming provincial rules go too far and could conceivably be challenged as a constitutional violation. The Manitoba Association for Rights and Liberties (MARL) says they were conceived without any consideration of a person's right to privacy.
"(Attorney General) Andrew Swan could just as easily be Stephen Harper's justice minister as Greg Selinger's," MARL president and Winnipeg lawyer Corey Shefman said. "It really is quite frightening. You've got to wonder what's happening to our privacy rights.
"A large number of people these regulations are going to affect are just as innocent as you and I. They haven't been convicted of a crime. That's important for people to understand."
John Hutton, executive director of the John Howard Society of Manitoba, said the new regulations do away with the requirement jail officials need a belief, on reasonable grounds, that an inmate's communications could jeopardize a person's safety, the security of the facility or interfere with the administration of justice.
Under the new rules, jail officials need only tell inmates, either by a notice near or on the phone or in an audio message at the beginning of a call, that the conversation could be recorded.
"People in custody have just lost very significant rights in terms of having their communications used against them," Hutton said. "They've also lost significant access in that they could have their communications restricted with very little reason."
Swan was not available, but he said when the amending legislation to the Correctional Service Act was introduced two years ago that it was designed to make it "crystal clear" all inmate calls would be subject to being recorded and stored in the event of a criminal prosecution.
A Department of Justice spokeswoman said by recording all calls corrections officials won't always know when or if information they have intercepted may become relevant, either for intelligence or investigation reasons. It's possible no one would ever listen to many of the calls unless there was a reason to do so.
The incoming rules allow officials to keep recordings of inmate phone conversations for longer than 120 days -- there is no specified maximum amount of time -- if there are reasonable grounds to believe the communication relates to a criminal offence, jail security or if the communication was used by the inmate to harass or cause harm to others.
Hutton said the wording implies an intercepted phone conversation could be used to bring criminal charges against an inmate, but it does not specify that.
"There's nothing that says it could be used in court or be kept indefinitely or used in internal hearings against the inmate. Certainly, that isn't spelled out at all," Hutton said.
"I wonder if it's even constitutional and I wouldn't be surprised if there are legal challenges down the road based on that," he added.
More troubling, Hutton and Shefman said, is 65 per cent of offenders in the provincial system are on remand or pre-trial custody, meaning they couldn't get or were denied bail and have yet to be prosecuted.
"The vast majority of people in correctional centres have not been convicted of a crime and should be considered innocent, and yet they don't have the same expectation of privacy that any other innocent person would have in the community and quite frankly, that's just not fair," Hutton said.
"What we're telling people who aren't guilty of any offence, who haven't been convicted of anything, is that they have no right to privacy, whatsoever," Shefman added.
Hutton said the changes also discriminate against aboriginal people, who make up 70 per cent of the people whose cases are on remand.
"They're poor, they don't have a lot of assets and they don't have a lot of privacy and now they have even less privacy, and they have less privacy than someone who has the resources to stay out of custody."
Shefman said the wording allows jail officials to monitor a privileged call between an inmate and lawyer if the institution believes a call involves a third party.
Hutton also said officials have a wider power to restrict or even revoke phone privileges, and not explain why: "It would certainly be questionable about how fair it is to restrict communications without specifically saying why."
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