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Is it legal to record a private conversation? Wiretapping and the one party consent exception to the rule against interception
Tue, 2008-05-06 19:32 — Anonymous (not verified)
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Synopsis
This article considers whether it is legal to record private conversations in Canada. The discussion distinguishes between conversations that the person recording is involved in and conversations that the person recording is merely eavesdropping on.
The Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] imposes a general prohibition on interception (recording) of private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. Thus, broadly speaking, Canadians can legally record their own conversations with other people, but not other peoples' conversations that they are not involved in.
If the police in Canada want to record conversations that none of the officers (undercover or otherwise) will be involved in they can apply beforehand for a warrant permitting them to eavesdrop on the conversation that is expected to reveal evidence of a crime.
State agents may lawfully record conversations that they are involved in, but, unless obtained under authorization of a warrant that recording will have been obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms [Charter] and may not be admissible as evidence in court.
Other legislation in Canada protects various privacy rights, but does not prevent Canadians from recording their own conversations with others.
The basic rule is that it is illegal to intercept a private communication.
Section 184(1) of the Criminal Code sets out the general rule that it is illegal to willfully intercept a private communication:
Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
The meaning of “intercept”
Section 183 of the Criminal Code provides the following definition for intercept:
"intercept" includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.
Thus, the definition of intercept is broad and although recording a conversation using a recording device would constitute an interception, recording is not necessary for there to be an interception. Simply listening in on a private conversation between others is an interception of it, and recording your own conversation is an interception of it.
However, it is only an interception if the eavesdropper or recorder is located between the originator of the communication and the intended recipient. If the originator of a communication believes he is speaking to A, but is mistaken and is actually speaking to B, B is not considered to be “intercepting” the communication. The originator intends B (the person on the other end of the phone) to receive the communication, and is merely mistaken as to who he is speaking to. Therefore, when the police answer a telephone belonging to someone else, they are not “intercepting” communications and s. 184(1) of the Criminal Code does not apply. Thus, if the police answer the phone in a house they are lawfully searching under a warrant, or seize a phone from a drug dealer they have arrested and then answer it when it rings (perhaps a customer phoning in to place an order), they are not considered to be intercepting a private communication. See R. v. McQueen (1975), 25 C.C.C. (2d) 262 (Alta. C.A.) and R. v. Singh (1998), 127 C.C.C. (3d) 429 (B.C.C.A.).
What constitutes a private communication
The statutory definition of private communication
Section 183 of the Criminal Code provides the following definition for private communication:
"private communication" means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it.
(emphasis added).
The communication requirement
The difference between a communication and a conversation was explained as follows by the Supreme Court of Canada in R. v. Goldman, [1980] 1 S.C.R. 976 [Goldman]:
In my view, the difference between the word conversation and the word communication is, in the context of this statutory provision, significant. A communication involves the passing of thoughts, ideas, words or information from one person to another. Conversation is a broader term and it would include, as all conversations do, an interchange of a series of separate communications.
(Goldman at 995).
The Court in Goldman further explained that the “originator” of the communication “is the person who makes the remark or series of remarks” in question(Goldman at 995), which means that there are multiple originators in any conversation.
A communications must be directed from one person to another. Therefore, a prayer to God is not a communication: R. v. Davie (1980), 54 C.C.C. 92d) 216 (B.C.C.A.).
The privacy requirement
The wording of the definition for “private communication” indicates that the test for the privacy element is objective, not subjective i.e. the question is “should the originator reasonably have expected their communication to be intercepted?” and not “did the originator actually think that the communication would be intercepted?”
In R. v. Tam (1993), 80 C.C.C. (3d) 476 (B.C.S.C.) [Tam] the British Columbia Supreme Court considered whether ransom calls made by kidnappers to the father of the victim were “private communications”. The court held that they were not private communications because the accused had no reasonable expectation that they would not be recorded or listened to by other people:
In these circumstances, I fail to see how it could possibly be said that the ransom callers had any expectation of privacy... The callers had to know that [the victim's father, Mr. Cheng,] probably would involve others and there probably would be interceptions, tape recordings of the calls or disclosure by Mr. Cheng of the substance of the calls. They had no reason for believing that the communications would be kept private, as between them and Mr. Cheng. If they did have any expectation of privacy, it would have been based on their own attempts to intimidate Mr. Cheng and would not be a reasonable expectation.
(Tam at 479).
In R. v. Lubovac (1989), 101 A.R. 119 (C.A.) it was held that messages sent to a pager were not private communications because, given how the pager system in that case operated, persons other than the intended recipient may have heard the message:
[T]he pager simply broadcasts a message to those who may happen to hear – or overhear – it. The originator has no control over who may hear his message beyond the intended recipient.
(Lubovac at para. 20).
In R. v. Robertshaw (April 1, 1996), Philp J., (Ont. Gen. Div.) it was held that a 911 call was not a private communication.
Private communications to multiple persons
The privacy element of the definition for “private communications” refers to “the person intended by the originator to receive it” i.e. it is worded in the singular. However, s. 33(2) of the Interpretation Act, R.S.C 1985, c. I-21 states: “Words in the singular include the plural, and words in the plural include the singular”.
Further, s. 183.1 of the Criminal Code addresses one party consent to interception of private communications made by or intended to be received by multiple persons and confirms that a communication may be a “private communication” notwithstanding that it is communicated by the originator to more than one other person; see discussion below.
Therefore, a communication to a group of persons may be a “private communication”. Determining whether a communication to a group of persons is in fact a “private communication” would be evaluated by asking whether the originator could reasonably have expected that anyone other than the members of the group would intercept it.
The one party consent exception to the rule against interception
Statutory provision setting out the one party consent exception
Section 182(2) of the Criminal Code sets out a number of exceptions to the general rule that it is unlawful to intercept private communications. The most important exception for the purposes of this article is the exception that applies when one of the parties to the communication consents to interception i.e. s. 184(2)(a):
184(2) Subsection (1) [i.e. the section prohibiting interception of private communications] does not apply to:
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) [an interception done under the authorization of a warrant];
(c) [an interception by a telecommunications company providing services to the public who intercepts for the purpose of monitoring the quality of service];
(d) [an interception by a government agent monitoring the airwaves for illegal use of particular radio frequencies]; or
(e) [an interception by persons managing the quality of certain computer services to ensure that those computer services are not used illegally].
Thus any intended recipient of a communication is entitled to record it.
Section 184.1 of the Criminal Code provides a further exception to the rule against interception and permits undercover police officers to wear recording devices that transmit signals to a backup team who can move in to help the undercover officer if it appears that he or she may be in danger. In such cases the purpose of the recording device is not to record evidence but to protect officer safety. Recordings obtained in such circumstances can only be used as evidence in court in limited circumstances; see s. 184.1.
Cases considering the one party consent exception
Numerous Canadian cases have held that interception of private communications by parties to the conversation are not illegal.
In R. v. Goldman, [1980] 1 S.C.R. 976 [Goldman] the Supreme Court of Canada confirmed that an interception of a private communication is lawful if one of the parties consented to it and explained that “the consent may be express or implied and may be given by either the originator of the private communication or the intended recipient”: Goldman at 997.
In R. v. Fegan (1993), 62 O.A.C. 146 (C.A.) a telephone company (Bell Canada) used a device to record signals that would provide information on the telephone usage habits of one of its customers. The Ontario Court of Appeal held that the signals recorded were not “private communications”, but said that even if they were the telephone company was not a state agent and was entitled to record the communications made to it:
As to s. 184(2)(a) ...Bell Canada is the intended recipient [of the communication], and if it decides to record the signal, it is free to do so.
(R. v. Fegan (1993), 62 O.A.C. 146 at para. 39 (CA))
In R. v. Strano (2001), 80 C.R.R. (2d) 93 (Ont. H.C.J.) a contractor surreptitiously recorded a conversation he had with the accused using a device disguised as a pen. The recording was originally made for the contractors own purposes, but later provided to the police who used it in a criminal prosecution for the offences of accepting secret commissions and breach of trust. Lane J. considered the relevant Criminal Code provisions and the Charter, but held that neither applied to the recordings.
In La Compagnie D’Assurance Standard Life v. Renald Rouleau, [1995] R.J.Q. 1407 at para. 19 (S.C.) the Quebec Superior Court held that an employer surreptitiously recording telephone conversations with an ex-employee was not a violation of s. 184 of the Criminal Code.
Regarding consent to interception of communications made at work, in the United States case of United States v. Rittweger, 258 F. Supp. 2D 345 (04/24/2003) the court held that consent given by an employee at the outset of employment was sufficient to allow the employer to record the employee’s conversations in the course of employment. In that case the employer handed recordings of conversations the employee had regarding share transactions over to the police for use in prosecuting the employee.
Consent to interception of a conversation involving many people
If many people are involved in a single conversation, it can lawfully be recorded so long as any one of the parties to the conversation consents to it being recorded. That rule is set out in s. 183.1 of the Criminal Code:
Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.
Conclusion regarding the one party consent exception
The foregoing indicates that, in Canada, it is legal to record your own conversations, whether they are had on the telephone or in person. However, it is illegal to record a conversation if you are not one of the intend recipients of the communications made in that conversation.
It is illegal to possess surreptitious recording devices in Canada
Although it is legal for Canadians to record conversations that they are involved in, it is illegal for them to possess surreptitious recording devices.
Section 191(1) of the Criminal Code provides as follows:
Every one who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Section 191(1) of the Criminal Code sets out exceptions to that prohibition for the police and persons holding licenses to possess surreptitious devices.
Thus, Canadian can record their own conversations, but should do so with regular recording devices such as dictaphones, tape recorders, ipods etc.
Admission of intercepted communications as evidence in court
Admission into evidence of private communications intercepted by state agents
An interception by a state agent (e.g. a police officer) of a conversation he or she is not involved in will, unless it was obtained under a warrant or some other exception applies, be unlawful and will most likely not be admissible as evidence in court.
If a state agent records a conversation that he or she is involved in, although the interception will be legal (assuming the state agent consented to interception of the communication), it may still not be admissible as evidence in court. The following discussion considers this scenario.
One party consent interceptions by state agents breach of s. 8 of the Charter
Section 8 of the Charter provides that: “Everyone has the right to be secure against unreasonable search or seizure”.
In R. v. Duarte, [1990] 1 S.C.R. 30 [Duarte] the Supreme Court of Canada considered whether one party consent interceptions breach s. 8 of the Charter. In that case a police officer bugged an apartment and then invited the accused into the apartment to discuss a drug deal. The conversation was recorded and the Crown sought to introduce it as evidence in the criminal prosecution against the accused. The Supreme Court of Canada held that even if an interception of a communication by a state agent is lawful (because of the one party consent rule) that will not necessarily mean that the recording can be admitted as evidence in court. Rather, the Court held that an interception by a state agent (even of his or her own conversation) without prior judicial authorization would infringe s. 8 of the Charter.
The Supreme Court of Canada acknowledged that regardless of whether the state agent records the conversation he or she could give evidence of it in court and describe everything that was said i.e. there is always a risk that the people you speak to will repeat what you say to other people, and may give evidence of it in court. However, the majority of the Court said that the risk of being recorded is not simply a variant of the risk of having one’s words disclosed by the person spoken to:
Surreptitious electronic recording annihilates the very important right to determine to whom we speak, i.e., the right to choose the range of our auditors.
(Duarte at 51).
The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.
(Duarte at 44).
If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.
(Duarte at 46).
Thus, the majority of the Court held that interception of a private communication by a state agent who is part of the conversation would, although lawful, be a violation of s. 8 of the Charter unless the interception was authorized by warrant.
Lamer J. (as he then was) dissented on that issue and said that if the evidence of the tattletale is admissible, the recording of the conversation should also be admissible.
It may seem counterintuitive that an act could be legal yet still be a breach of s. 8 of the Charter. However, that result flows from the fact that the Criminal Code (a penal statute) permits some unreasonable interceptions, but the Charter does not:
[I]t is extremely important to carefully distinguish between findings of "unlawfulness," in the sense of non-compliance with the Criminal Code, and findings of "unreasonableness" in the sense of non-compliance with s. 8 of the Charter. Unreasonableness is obviously the wider of the two categories; all unlawful interceptions will be unreasonable but not all unreasonable interceptions will be unlawful. A search can be authorized by a valid law, but nonetheless offend s. 8.
(R. v. Thompson, [1990] 2 S.C.R. 1111 at 1153).
One party consent recordings by state agents may be admissible under s. 24(2) of the Charter
Evidence which is obtained in breach of a Charter right may nonetheless be admissible under s. 24(2) of the Charter which provides as follows:
Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
In Duarte the Supreme Court of Canada held that although the recording in that case was obtained in breach of s. 8 of the Charter because it was done without prior judicial authorization, it was admissible under s. 24(2):
In short, the Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event. Under these circumstances, I hold that the appellant has not established that the admission of the evidence would bring the administration of justice into disrepute.
(Duarte at 60).
Since the law was explained to all of Canada, including police officers, in Duarte, in the future police offers will not easily be forgiven for not obtaining warrants prior to intercepting private communications that they are involved in. However, in every case were s. 8 is breached, the court must consider whether the evidence should be excluded under s. 24(2). Relevant factors include whether the evidence is conscriptive and whether its admission would render the trial unfair and bring the administration of justice into disrepute. See R. v. Fegan (1993), 62 O.A.C. 146 (Ont. CA), R. v. Ungar (1993), 83 C.C.C. (3d) 228 (Man. C.A.)
Legislative modifications after the decision in Duarte
After the decision in Duarte amendments were made to the Criminal Code provisions dealing with private communications. One important addition was the provision which specifically requires state agents to obtain prior judicial authorization for interceptions based on the consent of one of the parties:
184.2(1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).
Section 184.2 was held to be constitutional in R. v. Bordage (2000), 146 C.C.C. (3d) 549 (Que. C.A.).
Admission into evidence of private communications intercepted by civilians
The analysis in Duarte has no application to interceptions made by civilians i.e. non state-agents.
Various Canadian cases have admitted recordings made by civilians into evidence where it was found that the civilians were not acting as state agents at the time of the recording. See, for example: R. v. Tam (1993), 80 C.C.C. (3d) 476 (B.C.S.C.); R. v. Fegan (1993), 62 O.A.C. 146 (CA); R. v. Strano (2001) 80 C.R.R. (2d) 93 (Ont. C.J.).
In R. v. Coburn (2003), 108 C.R.R. (2d) 173 (B.C.S.C.) it was held that even though the interceptions in that case were made with the intent of handing them over to the police, that did not make the person recording them a state agent.
State agents in the United States can rely on the one party consent rule to obtain admissible evidence
In the course of its reasons in Duarte, the Supreme Court of Canada considered the rule in the United States (set out by the United States Supreme Court in the case of United States v. White, 401 U.S. 745 (1971)) that American police can rely on one party consent to record conversations without a warrant and have the recording entered into evidence at trial. The United States position is justified on the basis that the officer could recount the conversation in court anyway and so should be allowed to provide the recording as accurate evidence of what was said.
However, the Supreme Court of Canada also discussed some United States state appellate court decisions rejecting the conclusion in United States v. White, and quoted the following passage from the Supreme Court of Pennsylvania:
Every speaker knows and accepts as a “condition of human society” that his listener may go to the police, but he does not intend by speaking to give up the right to exclude the police from his home. But if the police are simultaneously recording every word, they are already there, in the home, uninvited, contrary to every reasonable expectation that most people in society still have.
(Duarte at 51 citing Commonwealth v. Schaeffer, 536 A.2d 354 (1987) at 365).
As explained above, the Supreme Court of Canada held that the rule in Canada should be that a warrant is required by the police to obtain admissible evidence. Therefore, Canadians have a greater protection of privacy with respect to recordings of their conversations by state agents than American's do.
Rights to privacy under other Canadian legislation
Apart from the Criminal Code, various statutes in Canada provide privacy protection. For example, the British Columbia Privacy Act, R.S.B.C. 1996, c. 373 [Privacy Act] codifies the tort of violation of privacy. However, there is nothing in that statute which indicates that it is a violation of another person’s privacy to record a conversation with them. Further, s. 1(2) of the Privacy Act states that:
The nature and degree of privacy to which a person is entitled … is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.
(Emphasis added).
Thus, the Privacy Act would not likely prevent a party to a private communication from recording it as permitted by s. 184(2)(a) of the Criminal Code.
Article 5 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 [Quebec Charter] provides that “Every person has a right to respect for his private life” and articles 35 and 36 of the Civil Code of Québec, S.Q. 1991, c. 64 [Civil Code] provide as follows:
35. Every person has a right to the respect of his reputation and privacy. No one may invade the privacy of a person without the consent of the person unless authorized by law.
36. The following acts, in particular, may be considered as invasions of the privacy of a person:
1) entering or taking anything in his dwelling;
2) intentionally intercepting or using his private communications;
3) appropriating or using his image or voice while he is in private premises;
4) keeping his private life under observation by any means;
5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;
6) using his correspondence, manuscripts or other personal documents.
However, Quebec courts have interpreted those provisions restrictively. For example, in La Compagnie D’Assurance Standard Life v. Renald Rouleau, [1995] R.J.Q. 1407 (S.C.) the Quebec Superior Court confirmed that surreptitious recording of telephone conversations is not, in itself, a violation of the right to privacy guaranteed by the Quebec Charter. In that case an employee (the defendant) of an insurance company (the plaintiff) had moved to a new company and used confidential information of the plaintiff as part of her efforts to encourage clients of the plaintiff to switch to the defendants new employer. A senior officer of the plaintiff recorded two telephone conversations with the defendant without the defendant knowing. The Court held that those recordings were legally obtained and were admissible in evidence.
Thus, it appears that s. 36(2) of the Civil Code does not apply where the communication recorded does not relate to intimate details of the speakers private life.
The foregoing indicates that as of the time of writing this article (2008) provincial privacy legislation in Canada generally does not prevent Canadians from recording their own conversations with others. However, privacy legislation evolves as legislation changes and new cases are decided and recording private conversation may, in some circumstances, be found to support a civil cause of action. Legal advice should be sought before recording conversations.
