Significant advances in technology over the last decade have made audio recordings crucial evidence at trial and in legal proceedings.  Examples include 911 calls, voicemail messages, audio recordings, video camera footage, cell phone conversations, and computer data files.

In some cases, recorded conversations captured by individual(s) who are participants to a conversation are captured on Android or iPhone without sophisticated devices and are becoming key evidence at trial.

In this article, we will explore the legality of recording a conversation in Canada and the factors considered when determining their admissibility as evidence at trial.

Recording a Private Conversation in Canada

In Canada, s.184 of the Criminal Code of Canada states that recording a private conversation is legal provided that one of the participants consents to the recording.  The consenting party can also be the party who is recording the conversation. This exception is known as “one party consent.” It is legal for one of the parties to record a conversation or telephone call without advising the other or more participants.  Consent is required from one participant to the conversation.

Illegal Interception of a Private Conversation

Canadians can legally record their own conversations with other people; however, s.184 of the Criminal Code of Canada states that it is illegal to willfully intercept a private conversation by any means including by listening to, recording, or acquiring the communication or the substance therein.  This activity is known as eavesdropping, which is illegal in Canada.  In short, it is illegal to record other people’s conversations to which the individual is not a party.

Reasonable Expectation of Privacy

Courts interpret privacy in a “broad and liberal manner” and consider the circumstance of what would be a reasonable expectation of privacy.  There are reasonable expectations of privacy that apply to specific areas such as bedrooms, bathrooms, and changing rooms. While there are grey areas in the law regarding the recording of audio or video in shared spaces or in areas where surveillance is typical, a person could likely not claim a reasonable expectation of privacy in such a situation. For example, a person cannot have a reasonable expectation of privacy in what they knowingly expose in part or all to the public or within the abandons of a public place.

Admissibility of Audio Recording Evidence in Legal Proceedings

While interpretation of the “one party consent rule” is that it is legal to record a conversation whereby one party is consenting, there remains no guarantee that a court will accept this as evidence in court or a legal proceeding. A party to a legal action who wishes to introduce audio evidence must substantiate the circumstances of the necessity to record the conversation inconspicuously.  In some cases, presenting audio or video evidence may be the only way to accurately demonstrate ongoing abuse, harassment, or intimidation that is or has repeatedly occurred.  For example, it may not be safe to disclose to the other party that they were being recorded. In other cases, the possibility arises that using evidence obtained from one party consent has the potential to create an unfavourable impression to the judge presiding over the case.

Tips to Preserve Evidence

• To ensure the integrity, the courts prefer to obtain unedited audio recordings in their entirety.
• Prepare to establish the circumstances in which the recording is produced.
• Preserve the meta-data showing to provide evidence that the original is intact.
• Document the time, date, and speakers on the recording so you can produce an accurate court transcript.
• Ensure that the recording is clear and relevant to your case.

Presenting an Audio Recording as Evidence in Court

According to the Evidence Act, in a legal or court proceeding, court transcripts are required as admissible audio evidence. An experienced court reporter must certify transcripts, or an Authorized Court Transcriptionist (ACT) must endorse that the transcripts were completed accurately to the best of their ability and knowledge.

Certified court transcripts may be referenced as material facts when relied upon throughout a legal proceeding or trial.  Court transcripts are crucial for law firms, courts, and lawyers, since the court transcripts enable them to carefully assess the dialogue while referencing back to crucial evidence throughout a legal proceeding.

Overall, there are many benefits to having a transcript of a legal proceeding. This is why legal transcription is so important in court proceedings. By having a court transcript, you can be sure that the legal record is accurate, that the legal process is followed, and that all of the evidence is presented accurately. Transcription Canada routinely produces certified court transcripts that are relied on as evidence in legal proceedings.

Visit canlii for recent case law

To find recent case law visit canlii website by clicking here to find recent case law and how case law was most recently applied.  Search canlii for “s.184.”