Can I Secretly Record A Conversation
Digital technology has brought an incredible change to our ability to capture, store and retrieve information including the ability to easily record conversations without the knowledge of participants. One of the questions that I am asked frequently in litigation is whether the litigant can record a conversation with the opposing party or potential witnesses. A secondary question is, what can be done with a recording once it is made.
Section 184 of the Criminal Code of Canada makes it an offence to intercept or record a private conversation. In other words, you cannot listen in or record a conversation. There is, however, an exception that allows a recording if one or more of the parties involved consent to the recording. Practically, this means that if you are participating in the conversation you can record it. If you are not participating in the conversation, such as a conversation between two of your co-workers about you, you may not record the conversation.
The secondary consideration of what you intend to do with the conversation is equally important. Some thought should be given to how you intend to use the recording. If, for example, you are recording your boss while discussing a workplace situation you should consider how your boss will react to learning of the recording and whether making the recording will hurt or help the situation. If it is likely to create harsh feelings, it may be prudent not to record the conversation or to ask your boss if you may record it to keep track of any agreements that are made.
Similarly, if you are making the recording for use in a court proceeding, you should know that you cannot edit the recording to remove any embarrassing or unhelpful parts. This would be destroying evidence and could lead to a judge making an "adverse inference" against you that the removed evidence would have destroyed your case. Moreover, if you make a recording you will have to disclose it to the other parties regardless of whether it is helpful or harmful to your case.
Finally, you should think carefully before sharing a recording conversation with any third parties or strangers to the conversation. Doing so, especially if the conversation included private details, could be a invasion of the other person's privacy rights and could result in a lawsuit against you for intrusion upon seclusion.
The Lesson: As a general rule, if you are going to record it is best to take a honest open approach and ask for consent or advise the other party(ies) that the conversation is being recorded "to keep track of what you agree to". Always consider what purpose you are making the recording for and whether it will be more harmful than helpful.
Jones v Taige, 2012 ONCA 32, https://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.pdf
The content and the opinions expressed here is informational purposes only and does not constitute legal or professional advice. Nor does reading or commenting on it create a lawyer/client relationship with the author. I encourage you to contact me directly at adrianlawoffice@gmail.com if you have specific legal questions or concerns.
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