March 31, 2016

Lawyers to exercise extreme caution when sending items or correspondence received from third parties to clients in correctional facilities

March 31, 2016

Lawyers may be asked by a client or by a third party to mail or deliver items or correspondence to inmates in correctional facilities. Lawyers must take particular care to ensure that such materials are not contraband as defined in the Correction Act, SBC 2004, c.46, or deemed to be contraband by the correctional facility.

Pursuant to section 17 of the Correction Act:

A person commits an offence if at a correctional centre the person possesses, delivers or sends to or receives from an inmate anything that is referred to in paragraph (a), (b) or (c) of the definition of “contraband”…

The Correction Act defines contraband as:

(a) an intoxicant;

(b) if possessed without prior authorization, a weapon, any component of a weapon or ammunition for a weapon, or anything that is designed to kill, injure or disable or is altered so as to be capable of killing, injuring or disabling;

(d) if possessed without prior authorization, any currency;

(e) if possessed without prior authorization, tobacco leaves or any products produced from tobacco in any form or for any use;

(f) if possessed without prior authorization, any other object or substance that, in the opinion of an authorized person, may threaten the management, operation, discipline or security of, or safety of persons in, the correctional centre…

Electronic disclosure now being relied upon by the Crown has created an additional dimension to the delivery of contraband that, according to some correctional facilities, includes movies, music, pornography and drugs secreted inside a hard drive. Alternatively, the hard drive itself may be deemed contraband, as some are large enough to be able to contain a weapon or drugs, all of which could result in a threat to the safety and security of correctional staff and inmates.

Relevant BC Code provisions

Several rules in the BC Code set out lawyers’ professional obligations to ensure that their actions do not facilitate delivery of contraband:

Rule 2.1-1 (a):

A lawyer owes a duty to the state, to maintain its integrity and its law. A lawyer should not aid, counsel or assist any person to act in any way contrary to the law.

Rule 3.2-7:

A lawyer must not engage in any activity that the lawyer knows or ought to know assists in or encourages any dishonesty, crime or fraud.

Rule 3.2-7, commentary [1]:

Lawyers should be on guard against becoming the tool or dupe of an unscrupulous client, or of others, whether or not associated with the unscrupulous client.

Rule 6.1-1:

A lawyer has complete professional responsibility for all business entrusted to him or her and must directly supervise staff and assistants to whom the lawyer delegates particular tasks and functions.

If asked by a third party or client to mail or deliver items or correspondence, the best practice is for a lawyer to consider whether the request has anything to do with the matter the lawyer has been retained on and, if the answer is no, to decline the request.

Caution regarding marking communications as privileged

According to a Correctional Service Canada Commissioner’s Directive, correspondence between an inmate and legal counsel is privileged and shall be forwarded unopened to the addressee. This procedure shall normally include the office and/or staff thereof. In addition to the Commissioner’s Directive, each correctional facility may have policies and procedures with respect to the treatment of correspondence received from lawyers and/or their office. Lawyers who mail or deliver items or correspondence to their clients in correctional facilities must be aware of the law and other applicable policies and procedures of each correctional facility. They must also inspect and be aware of the contents being mailed or delivered to their client. Lawyers who delegate the administrative duties of mailing or delivering items or correspondence to correctional facilities must still ensure that they are aware of the contents and that the packages are marked correctly.

Correctional facilities have expressed concern that drugs and other contraband are being sent on a regular basis into jails purporting to be from law firms, often on letterhead, when the letters were in fact not sent by a law firm. Letters purporting to be sent by law firms, after raising suspicion, have been intercepted by corrections and drugs have been discovered.

The mutual trust relationship between all parties to the criminal justice system, including defence counsel, is integral to the proper administration of justice.

Conduct reviews ordered

Two conduct reviews were recently ordered to address such conduct. In one case, a lawyer sent a hard drive (deemed contraband by the correctional facility) received from a third party to his inmate client. The lawyer failed to supervise his assistant, who labelled the envelope in the usual way, as “solicitor-client privileged.” The hard drive was examined and contraband was discovered (CR 2016-01).

In the other case, a lawyer unwittingly sent an illegal drug to his client in a correctional facility. The drug was embedded in letters and photographs, which had been delivered to the lawyer’s office from a friend to send to the inmate client. The lawyer inspected the material before sending it to the client but did not discover the drugs. The envelope was examined by corrections and the illegal drug was discovered on one of the pieces of paper (CR 2016-02).

A conduct review is one form of disciplinary action that may be ordered by the Discipline Committee pursuant to Law Society Rule 4-4 (1)(d). A written report is prepared following the conduct review and, once accepted by the Discipline Committee, forms part of the lawyer’s professional conduct record.