T-888-76
William (Billy) Solosky (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Addy J.—Toronto, October 28;
Ottawa, November 19, 1976.
Imprisonment—Privilege attached to solicitor-client corre-
spondence—Whether censorship by prison authorities breach
of privilege or in contravention of Post Office Act—Penitentia-
ry Act, R.S.C. 1970, c. P-6, ss. 29(1) and (3)—Penitentiary
Service Regulations, s. 2.18, SOR/62-90—Post Office Act,
R.S.C. 1970, c. P-14, s. 43—Canadian Bill of Rights.
Plaintiff claims that the head of the penitentiary where he is
detained has no right to order the censorship of mail, particu
larly mail between an inmate and his solicitor, and asks for a
declaration that all correspondence directed to and received by
his solicitor be regarded as privileged communications and be
forwarded unopened by the prison authorities.
Held, the action is dismissed with costs. Although directives
made pursuant to section 29(3) of the Penitentiary Act do not
have the force of law, regulations made by the Governor in
Council under section 29(1) of the Act do confer legal rights
and authority and Penitentiary Service Regulations, section
2.18 empowers the head of an institution to order censorship of
correspondence. Section 43 of the Post Office Act is not
contravened by the Regulation since it only refers to items "in
the course of post".
A prison inmate has no more rights or privileges in common
law as enshrined in the Canadian Bill of Rights than does an
ordinary citizen and, in fact, loses some by reason of his
incarceration. In any event, solicitor-client privilege only
applies to communications or parts of them seeking or giving
legal advice and whether or not the information is privileged
can only be ascertained by opening and reading the correspond
ence. Finally, there is no reason why the plaintiff should be in
a better position than an ordinary citizen with regard to costs.
Unless special circumstances exist to justify an order to the
contrary, costs should follow the event.
R. v. Institutional Head of Beaver Creek Correctional
Camp, Ex parte MacCaud [1969] 1 O.R. 373; R. v.
Bencardino (1974) 2 O.R. (2d) 351; O'Shea v. Wood
[1891] L.R. (P.D.) 286 and Clergue v. McKay (1902) 3
O.L.R. 478, applied.
ACTION for declaratory judgment.
COUNSEL:
David Cole for plaintiff.
J. P. Malette for defendant.
SOLICITORS:
David Cole, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ADDY J.: The plaintiff, an inmate of Millhaven
Institution, sues for a declaration that all items of
correspondence properly identified as directed to
or received from his solicitor be regarded as privi
leged communications and be forwarded unopened
by the prison authorities.
The Director of Millhaven Institution has
ordered that the plaintiff's mail be opened and
read. The order has been applied to mail originat
ing from his solicitor as well as other mail. Direc
tive 219 of the Commissioner of Penitentiaries
dated the 26th of September 1974, and amended
on the 28th of June 1976, reads in part as follows:
5. DIRECTIVE
a. Penitentiary staff shall promote and facilitate correspond
ence between inmates and their families, friends, and other
individuals and agencies who can be expected to make a
contribution to the inmate's rehabilitation within the institu
tion and to assist in his subsequent and eventual return to the
community.
c. Subject to the provisions of paragraph 14 every inmate
shall be permitted to correspond with any person, and shall
be responsible for the contents of every article of correspond
ence of which he is the author. There shall be no restriction
to the number of letters sent or received by inmates, unless it
is evident that there is mass production.
d. Subject to the provisions of paragraph 8, every item of
correspondence to or from an inmate may be opened by
institutional authorities for inspection for contraband.
7. CENSORSHIP
b. Censorship of correspondence in any form shall be avoid
ed, but nothing herein shall be deemed to limit the authority
of the Commissioner to direct, or the Institutional Director to
order, censorship of correspondence in any form, to the
extent considered necessary or desirable for the rehabilitation
of the inmate or the security of the institution. (PSR 2.18).
Any form of censorship shall be undertaken only with the
approval of the Institutional Director.
8. PRIVILEGED CORRESPONDENCE
a. "Privileged correspondence" is defined as properly identi
fied and addressed items directed to and received from any of
the following:
(1) Members of the Senate
(2) Members of the House of Commons
(3) Members of provincial legislatures
(4) Members of legislative councils for Yukon and North
west Territories
(5) The Solicitor General
(6) The Commissioner of Penitentiaries
(7) The Chairman of the National Parole Board
(8) The Federal Correctional Investigator
(9) Provincial Ombudsmen (see Annex "A").
b. Privileged correspondence shall be forwarded to the
addressee unopened.
c. In exceptional cases where institutional staff suspect con
traband in such privileged correspondence, the Commission
er's approval shall be obtained before it is opened.
Although these directives of the Commissioner
of Penitentiaries are made pursuant to section
29(3) of the Penitentiary Act', they are made
solely for the proper administration of the institu
tion under him, do not have the force of law and
cannot create jurisdiction or a legal authority for
actions taken pursuant thereto which are not
otherwise authorized by law; see Regina v. Institu
tional Head of Beaver Creek Correctional Camp,
Ex parte MacCaud 2 at pages 380 and 381:
His directives, which are internal to the Penitentiary Service,
may and probably do govern the employer-employee relation
ship between the staff member and his superiors as part of the
administrative structure. They define for the staff member the
manner in which, and the limits within which, he and other
members of this service are expected to perform their duties;
departure from the directives may constitute an infraction of
the obligation owed by the staff member to his superior, but
any conduct on the part of a staff member which, in the
absence of the directives, would not constitute an infringement
of some civil right or right conferred on the inmate by the
statute and Regulations, does not by virtue of the directives
become such an infringement. In other words, there is no
obligation owed by a staff member to the inmate to adhere to
the directives. The duty owed by the staff member to the
inmate must be found in the statute and Regulations.
' R.S.C. 1970, c. P-6.
2 11969] 1 O.R. 373.
However, in addition to the right of the Com
missioner to issue directives, the Penitentiary Act
by section 29(1) provides that the Governor in
Council has the power to make regulations. It
reads as follows:
29. (1) The Governor in Council may make regulations
(a) for the organization, training, discipline, efficiency,
administration and good government of the Service;
(b) for the custody, treatment, training, employment and
discipline of inmates; and
(c) generally, for carrying into effect the purposes and provi
sions of this Act.
Pursuant to section 29(1) of the Penitentiary
Act, section 2.18 of the Penitentiary Service
Regulations 3 was enacted. It reads as follows:
2.18. In so far as practicable the censorship of correspond
ence shall be avoided and the privacy of visits shall be main
tained, but nothing herein shall be deemed to limit the author
ity of the Commissioner to direct or the institutional head to
order censorship of correspondence or supervision of visiting to
the extent considered necessary or desirable for the reformation
and rehabilitation of inmates or the security of the institution.
It is clear that the head of an institution, such as
Millhaven, has the legal right and authority "to
order censorship of correspondence ... to the
extent considered necessary or desirable for ... the
security of the institution."
The plaintiff denies that the head of the institu
tion may order the censorship of mail and especial
ly of mail between an inmate and his solicitor.
The general right to censor mail is disputed on
the grounds that it constitutes contravention of
section 43 of the Post Office Act 4 which states that
.. nothing is liable to ... seizure ... while in the
course of post, except as provided in this Act or the
regulations." There is no merit to this contention.
In so far as mail emanating from the inmates is
concerned the mail is not "in the course of post"
until it is mailed in a mail box or deposited in a
post office. In so far as mail addressed to an
inmate is concerned, it is no longer in the course of
post once it has been delivered to the institution
where the inmate resides because section 2 of the
Post Office Act reads in part as follows:
3 SOR/62-90.
4 R.S.C. 1970, c. P-14.
2. (1) In this Act
"delivery", as applied to mail, means delivery to the addressee
thereof, and, for the purposes of this Act,
(a) leaving mail at the residence or place of business of the
addressee, ... .
The second ground of objection is that the open
ing of mail between an inmate and his solicitor
constitutes a breach of the long-established and
very jealously protected common law privilege
which exists regarding communications between a
solicitor and his client.
It is important of course to realize that under
the common law itself a prisoner, who has been
incarcerated following his conviction for a criminal
offence, does not enjoy all of the common law
rights and privileges of an ordinary free citizen.
He, for instance, forfeits his very basic right to
freedom and his right to communicate freely with
his fellow citizens is, of necessity, considerably
restricted. The Canadian Bill of Rights does not to
any extent purport to enlarge on traditional
common law rights and privileges, but constitutes
rather a re-statement or codification of those
rights and privileges. It recognizes them in a
solemn manner, subject however to the normal
qualifications and limitations which have always
characterized them. The main innovative thrust of
the Canadian Bill of Rights is against any statu
tory enactments past, present and future tending
to abrogate, limit or derogate from any rights or
privileges otherwise recognized by law.
In any event, and more specifically, the Canadi-
an Bill of Rights contains no provision which for
the plaintiff, in the circumstances of the case at
bar, might create for him or add to any common
law rights or privileges.
Assuming that a convicted person, whilst incar
cerated as a convicted criminal, still enjoys the
right to communicate privately with his solicitor
and I cannot see how that right can be completely
denied to him, although for the proper administra
tion of the penal institution or for other reasons
such as mere limitations of staff and facilities the
right might still be subject to certain limitations
and control such as the time of day or the fre
quency with which the right may be exercised, it
also seems trite to say that any privilege attached
to such right of a prisoner to communicate with his
solicitor will be no higher than that enjoyed by any
other citizen.
In the case of the ordinary citizen, the privilege
does not exist merely because the communication
is between a solicitor and his client. The seeking or
giving of legal advice must be the object of the
communication and it is privileged only to that
extent; see Regina v. Bencardino 5 at page 358:
Not every communication by a client to his solicitor is privi
leged. To be privileged the communication must be made in the
course of seeking legal advice and with the intention of confi
dentiality. As stated by Wigmore on Evidence, 3rd ed. (1940),
vol. 8, s. 2311:
No express request for secrecy, to be sure, is necessary. But
the mere relation of attorney and client does not raise a
presumption of confidentiality, and the circumstances are to
indicate whether by implication the communication was of a
sort intended to be confidential. These circumstances will of
course vary in individual cases, and the ruling must therefore
depend much on the case in hand.
In my opinion the new trial Judge should conduct a voir dire as
to what Quaranta said to Mr. Greenspan and if it appears that
Quaranta was not seeking legal advice but rather relief from
intimidation in prison or if it appears that he expressly or
impliedly authorized Mr. Greenspan to divulge his plight to the
authorities then I think Mr. Greenspan can be required to
testify before the jury as to what Quaranta said to him in that
connection.
See also O'Shea v. Wood 6 at page 289:
Letters are not necessarily privileged because they pass between
solicitor and client; in order to be privileged, there must be a
professional element in the correspondence.
And also at page 290:
Letters containing mere statements of fact are not privileged;
they must be of a professional and confidential character. The
affidavit in the present case does not allege enough to shew that
the correspondence is privileged.
See also Clergue v. McKay' at page 480:
It appears to be necessary, therefore, that the affidavit on
production should not only state that the correspondence is
confidential and of a professional character, but the nature of it
must be set forth, without any ambiguity whatever, in order
that there may be no doubt as to its being privileged.
5 (1974) 2 O.R. (2d) 351.
6 [1891] L.R. (P.D.) 286.
7 (1902) 3 O.L.R. 478.
It seems evident that privilege can only be
claimed document by document and each docu
ment can be considered as privileged only to the
extent that it meets the criterion which will allow
privilege to attach to it. In this regard it has also
been held quite frequently that, while part of a
document might be privileged, another part of the
same document might not be considered as
privileged.
When a letter is addressed to a solicitor by the
plaintiff or received by him from his solicitor, it is
clear that the question of whether the letter does in
fact contain a privileged communication cannot be
determined until it has been opened and read.
There can be no logical nor legal justification
for correspondence which appears to have emanat
ed from or to be addressed to a solicitor, enjoying
any special aura of protection. It is too easy for a
person to obtain envelopes and letterheads bearing
the name and title of a real or of a fictitious
solicitor and it is equally as easy for a prisoner to
camouflage the true identity of an addressee. Even
if the correspondence is in fact exchanged with a
solicitor, altogether apart from the strict limita
tions placed on privilege by the common law, one
would have to be singularly naïve to believe that,
because a person has been either clever enough or
fortunate enough to meet the academic require
ments to be enrolled as a solicitor or called to the
bar, that that person has attained a higher degree
of moral perfection than the ordinary citizen and
would somehow be incapable of engaging in corre
spondence with prisoners which might endanger
the security of the institution or of its personnel.
Unfortunately, the legal profession has its own fair
share of shady characters and even felons. In any
event, it is trite to say that the privilege is that of
the prisoner and not of the solicitor.
In essence, the problem is the age old one of
striking a reasonable balance between conflicting
rights and privileges: those of the individual on the
one hand and those of society and its essential
institutions on the other. It must be borne in mind,
however, that the citizen who stands convicted of a
criminal offence is presumed to have voluntarily
assumed the risk of incarceration with others and
all that it entails. If it requires certain restrictive
measures to be taken and those measures are not
forbidden by law, then, the prisoner must be
deemed to have voluntarily run the risk of his
normal rights and privileges as a free citizen in our
society being limited to the extent that is reason
ably necessary to ensure his and his fellow prison
ers' welfare and continued incarceration as pre
scribed by law as well as the security of the
institution and of its staff. Indeed, every citizen
must expect his normal rights and privileges to be
curtailed to the extent that is reasonably necessary
to allow the society in which he lives to attain its
legitimate objects.
In the present action there was no evidence nor
any suggestion that any communication between
the plaintiff and his solicitor to which privilege
would attach was improperly used or communicat
ed to any other party by the person charged by the
head of the institution with the duty of censoring
the mail. Furthermore, the relief sought by the
plaintiff is not to prohibit an improper use of
censored mail but to prohibit the opening of the
mail to examine its contents even where the head
of the institution deems the action necessary.
Although it follows that I am not obliged to decide
the question, I nevertheless wish to express my
view that it would be illegal as well as improper for
any person charged with the duty of censoring a
prisoner's mail in order to ensure the safety of the
institution or of its staff or the continued incarcer
ation or welfare of any of its inmates, to inform
any other person of the contents of a privileged
communication especially a person who might be
the subject of, directly concerned with or indirectly
affected by that communication. It is one thing to
say that the law gives the institution the right to
protect itself, and quite another to say that any
privileged communication obtained during the
legitimate exercise of that right may be used indis
criminately or improperly after its true character
has been ascertained.
It is also unnecessary for me, in order to dispose
of the present case, to decide whether once privi
lege attaches to a communication between a con
victed prisoner and his solicitor, that privilege
remains an absolute one or whether it cannot even
then, in certain circumstances, be subject to or
subordinate to other considerations such as the
security of the institution or the welfare of the
prisoner himself.
A practice seems to be developing lately where
by costs, which are normally awarded against an
unsuccessful litigant in a civil matter, are not
awarded when the litigant happens to be a convict
ed criminal. This practice, in my view, is to be
deplored and discouraged. I can see no reason
whatsoever why a person in the position of the
plaintiff should be afforded special treatment
regarding costs which would not be enjoyed by an
ordinary citizen. Furthermore, in deciding whether
costs should or should not be awarded against an
unsuccessful plaintiff, neither the ability to pay
nor the difficulty of collection should be a deciding
factor but, on the contrary, the awarding or refusal
of costs should be based on the merits of the case.
Unless special circumstances exist to justify an
order to the contrary, costs should normally follow
the event. No such circumstances exist here.
For the above reasons, the action will be dis
missed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.