Is a recorded conversation admissible in court in Canada? Should we disclose to the other party the fact that we are recording it? What do Canadian consent laws say?
There are many situations where one would like to record a secret conversation, whether in person or on the phone. Perhaps you are receiving threats from your neighbor and want to build evidence to file a complaint with the police.
Perhaps you are a victim of harassment at work by your employer who denies these allegations. We explain in this article if you can legally record a private conversation and when you shouldn’t.
Consent Laws Canada: The Right to Respect for Private Life
First of all, what does the law say about recording a conversation, is it ok?
At the civil level, the Civil Code of Canada lists certain situations that can be considered as invasions of a person’s privacy:
- Enter someone’s home or take anything there;
- Intercept or intentionally use private communication;
- Capture or use their image or voice when they are in private places;
- Monitor their privacy by any means whatsoever;
- Use their name, image, likeness, or voice for any purpose other than legitimate public information;
- Use his correspondence, manuscripts, or other personal documents.
There is an invasion of privacy at the criminal level when there is an interception of private communication. By private communication, we mean:
“Oral or telecommunication communication of which the author is in Canada, or intended by him to a person there, and which is made in circumstances such that the author can reasonably expect that a third party does not intercept it.”
The Criminal Code provides for a prison sentence of up to 5 years for this type of crime.
Can You Film Someone in Public?
Therefore, it is prohibited by law to record private communication, i.e., when you are not part of the communication. So the overriding question to ask is: are we part of the conversation in question?
So if a person is a party to a conversation, they are no longer a third party to the conversation. If the person is no longer a third party to the conversation, it is not private communication. In short, if it is not private communication.
The person can record his speaker without having to mention him. But this is legal as long as the recording does not constitute an intrusion in his private life.
Is it Legal to Record a Conversation without The other Person knowing?
Yes, as we said before, it is absolutely illegal to record the conversation, whether on the phone or any secret recorder.
Although recording private communication is prohibited, there is an exception. That is the case where the person gives up the privacy of the conversation by his behavior.
Think of a person who speaks very loudly in a restaurant and who is being filmed without his knowledge. In the event of a lawsuit, the person who filmed could have a defense. He could use to the effect that communication was no longer private. It took place in a public place.
Can You Record Police in Canada?
Some might fear facing threats or consequences because they film interactions between the police and citizens. But the law is on their side; yes, they can film police at work.
Canadians have every right to capture footage of police officers at work. It is legal as long as the filming does not obstruct an ongoing investigation of the police. Any police squad that responds by threatening to seize cell phones or lay criminal charges is wrong. They might risk overstepping the powers reserved for the police.
Is a Recorded Conversation Admissible In Court in Canada: Proof of Court Registration
The recording is considered admissible evidence in court. And the other party never has to be told that you are recording it without their consent. Court frequently uses this method in medical error cases where a doctor claims to have committed a fault.
Likewise, this method is often used in disputes between tenants and landlords.
Nowadays, it is easy to record both over the phone and in-person with phone apps. We strongly recommend that you record your conversation when taking out a contract with a service company, including an insurance company. Also, be vigilant when making a verbal contract. There are many contexts where recording can be useful to you.
But there is something to remember. This evidence can impact consent law. That is why the court has to follow several regulations in these cases.
So, What Can You Record and What You Can’t?
The law is categorical: any conversation in which a person takes part can be recorded. The person who records it does not have to reveal it to his speaker either. For example, a client can record a meeting with the lawyer without telling him.
It is prohibited to record a conversation between two or more people in which the person recording is not participating. For example, it would be illegal to unknowingly record coworkers in a meeting room or neighbors in their living room. If the person recording is not there, he is doing a punishable crime. Only the police can do it with a court warrant.
Can You Record Someone without Their knowledge and Use It in Court?
A patient can legally register his consultation with a doctor. A customer can do the same when visiting a pressure salesperson at their home. An employee can register his boss without his knowledge. It is also possible to record a meeting at work or a conference call. The question to ask is whether we are “part of the discussion” or not. Recording can be a way of demonstrating psychological harassment at work or proof of mistreatment at the doctor.
On the other hand, employees who record or film at work must not forget their duty of loyalty to their employer.
Can we distribute it: Even though it is legal to record a conversation, it is not always allowed to make it public. If the words in the recording could damage anyone’s reputation, it is illegal to broadcast it.
The increasing use of smart-devices allows everyone to record and film conversations. But the question is, is a recorded conversation admissible in court in Canada? Also, there is a risk of violating others’ privacy. So, it is essential to know the rules clearly before approaching with such content.