Accused killer Jamie Bacon's rights were violated when calls to his lawyer were recorded from jail over eight months in 2009, a B.C. Supreme Court judge has ruled.
And Justice Mark McEwan said Bacon is entitled to special costs to cover his court application related to the breach of his rights while he was held at Surrey Pre-trial Centre jail.
Bacon, who is awaiting trial for first-degree murder in the 2007 Surrey Six case, is no longer at the Surrey jail, McEwan noted in his ruling released Wednesday.
But if Bacon is returned from the undisclosed federal institution where he is now being held to the Surrey facility pending his upcoming trial, jail officials must ensure he has a secure landline for calls to his legal team, McEwan said.
McEwan's latest decision in favour of Bacon was a followup to a June 2010 ruling in which McEwan said Bacon's Charter rights had been violated when he was held in solitary confinement at Surrey Pre-trial Centre and denied privileges offered to other inmates.
"The breaches of solicitor-client privilege in the present case occurred against a background of other breaches of Mr. Bacon's constitutional rights, mostly intended to isolate him from all contact with the outside world, in a manner that I found to be hazardous to his psychological health and integrity," McEwan said in Wednesday's ruling.
"I have described, in my reasons for judgment in the original petition, the wholly inadequate conditions under which solicitor-client contact takes place in the Surrey Pre-Trial Centre, and the remarkable disregard, apparently inherent in the very design of the facility, for its purposes as a Remand Centre - that is, as a place where persons presumed to be innocent are to be held safe, on the direction of the court, until they can be brought back for trial."
McEwan, who earlier appointed an independent lawyer to investigate the scope of the telephone recordings, said all Bacon's calls to his lawyer between April 6, 2009 and November 27, 2009 were improperly recorded.
"From a legal perspective, it is important to underscore the significance of a breach of solicitor-client privilege. The privilege is more than a rule of evidence: it is a fundamental legal right," McEwan said.
"I noted that the right to a fair and public hearing by an independent and impartial tribunal includes the ability to prepare for such a hearing. Above and beyond the other forms of mistreatment to which the petitioner was subjected at the Surrey Pre-Trial Centre, it is now evident that he could not even be assured that solicitor-client privilege had been respected."
McEwan said that the recorded calls may become an issue during Bacon's criminal trial for first-degree murder in the Surrey Six case.
"If the breach of solicitor-client privilege goes beyond the fact that the calls were recorded, it may bear on issues in the trial of the charges upon which the petitioner has been remanded, and should properly be addressed in that context," McEwan said.
The B.C. government recently announced that Bacon would be tried separately from three co-accused in the 2007 gangland murder case without providing any explanation for the severance. No trial date has yet been set for either Surrey Six trial.
McEwan said pre-trial jails must implement a system where inmates can have private telephone conversations with lawyers. "I will not purport to direct a specific system for ensuring that this does not happen in future. I will simply state flatly that it is the expectation of this court that persons placed in the safekeeping of jailers, including the respondent, will not be vulnerable to such breaches and that it will be demonstrable, in any given case, that this is so," McEwan said.
He also ordered that any of Bacon's calls that were recorded be surrendered given that there is "no legal justification for the retention of such recordings."
Read the ruling here: www.courts.gov.bc.ca/ jdb-txt/SC/12/14/2012BCSC1453.htm