A tape recorder is seen in this stock photo by Getty Images.
Sometimes, you just have to cover your bases. Maybe you’re dealing with a difficult insurance claim or legal problem and you want records of all your interactions. Keeping notes is a must, but recording a conversation? That’s strong evidence.
But is it legal? Do you have to tell someone you’re recording them?
Canadian law is a little funny on that subject.
Section 184 of the Criminal Code prohibits wilful interception of private communications, but provides an exception if one of the participants consents to that interception. Basically, that means if you consent to record your own conversation, it’s perfectly legal. If you can’t get your own consent, you may be breaking the law.
However, it’s not legal to intercept a private conversation. Anyone doing so “by means of any electro-magnetic, acoustic, mechanical or other device” can face a maximum five-year jail term.
So while you can record a conversation, the legality of it also depends on the device. Section 191 of the Criminal Code bans possession, sale or purchase of any device designed for “surreptitious interception of private communications.”
Exactly what’s “private” has led to some interesting court battles, but the Code defines a private communication as one where the person initiating the conversation can reasonably expect that it won’t be intercepted by anyone except the intended recipient.
If multiple people are involved, it’s still legal to record as long as one person consents.
Among the court cases arguing the finer points of privacy:
R. v. Tam, 1993: If nothing else, you’ve got to give these defendants points for boldness. In this case, kidnappers tried to argue that their ransom calls were private communications, so the police recordings were inadmissible as evidence. British Columbia’s Supreme Court didn’t buy it, since it should be reasonably expected that the cops will listen in on a ransom call.
R. v. Davie: This one must have been controversial. A man arrested for starting a forest fire dropped to his knees in a police station and prayed, “Please God, let me get away with it this time.” His lawyer argued the prayer was clearly a private communication between the suspect and God. The original trial judge agreed, but the B.C. Court of Appeal rejected that line after the prosecution argued that God is not a person. If God were a person, the prosecutor added, they could be charged under the Criminal Code since some of their acts result in death.
It’s more complicated for the police.
If officers want to record a conversation they’re not involved in, they need a warrant and a justification for why they should be permitted to intercept. Also, an officer can record a conversation they are involved in but, unless they had a warrant, it has limited evidentiary use.
R v. Tam, 1993
Is it legal to record a conversation, tape a call, or 'bug' a telephone?