The comments attributed to B.C. Supreme Court Justice Mark McEwan are more than justified in response to revelations about unauthorized recordings of intercepts made of telephone calls between accused murderer Jamie Bacon and his legal counsel. One of the core principles of the criminal law is the reverence which must be shown for solicitor client privilege. Only in exceptional circumstances are the police authorized to intercept these communications. A Supreme Court Justice, when authorizing such an aggressive evidence gathering tactic, must be completely satisfied that the conversation between a lawyer and the client is likely to be of a criminal nature. That is to say that the authorizing judge must feel satisfied that evidence of criminal behaviour on the part of the lawyer will be gathered if the communications are subject to interception. While it is not without precedent that defense counsel will engage in criminal conspiracies with their clients, it is safe to say that most do not.
Of critical importance when examining the facts as they unfold from Surrey Pre-Trial Centre is the distinction between corrections staff and the law enforcement agencies involved in the Surrey Six mass murder investigation targeting Jamie Bacon and his co-accused. While corrections staff and the police are both components of “the state” when contemplating infringements against the rights of the accused, it is my view that the firewall between these government agencies is sufficient to protect the integrity of the case against Mr Bacon and his confederates.
There is a longstanding tradition within the prison world that states institutional security requires that communications involving inmates may be randomly monitored to ensure that jailbreaks, drug trafficking and other nasty activities are prevented wherever possible. I strongly suspect that what occurred in this case was an error by institutional employees in not turning off a machine, and not a draconian attempt to listen to conversations between Mr Bacon and his lawyer. We should wait for the completion of the investigation into these unlawful interceptions before setting our hair on fire. I anticipate that the evidence will show that while these privileged conversations may have been inadvertently recorded, they were not monitored for their content. Ultimately, this is the test when one considers good or bad faith.
If this is the finding, it is my view that the prosecution of Mr Bacon and his friends will continue unimpeded. The public will accept no other outcome in this horrible case of drugs, greed and the murder of two innocents.