Words Fade Away, but Recordings Remain: the Admissibility into Evidence of Audio and Video Recordings

By Samuel Gagnon. Co-written with Antoine Veillette, student-at-law.

1. Introduction

The extraordinary advances in technology over the last decade have made it increasingly difficult to determine where the right to privacy begins and ends. Through the lens of a cellular phone, the watchful eye of a surveillance camera or the inquisitive ear of a hidden microphone, this fundamental right appears to be increasingly eroded. Today a conversation can be routinely recorded without any particularly sophisticated or cumbersome equipment. In civil law however, many questions remain about the extent to which one’s privacy can be thus invaded. 

2. The general principle: admissibility 

The search for the truth is the essence of any judicial proceeding: “Evidence of any fact relevant to a dispute is admissible and may be produced by any means”¹. This principle is the basis for the general rule that all relevant evidence should be disclosed². However, applying that principle fully can adversely impact fundamental human rights, particularly the constitutionally protected right to privacy³. And that is why the rule is subject to several exceptions, including that limiting the admissibility into evidence of recordings in certain circumstances. 

3. The exception: infringement of fundamental rights 

A court must exclude – on its own motion if necessary – any evidence that (i) is obtained in circumstances that violate fundamental rights and freedoms and (ii) the use of which would tend to bring the administration of justice into disrepute⁴. 

Apart from instances where the right of professional secrecy is violated⁵, the party objecting to the admission of the evidence must show, on a balance of probabilities, that admitting it would bring the administration of justice into disrepute⁶. Through this criterion the legislature has sought to ensure respect for the rule of good faith⁷ as well as the preservation of freedom, security and human dignity⁸.

a. Knowledge of the persons being recorded 

The knowledge of the persons involved that they are being recorded is determinative for a judge ruling on the admissibility of evidence of this nature. 

As there is a wide variety of circumstances that can give rise to the recording of a conversation, two types of situations must be distinguished: one where the recording is made with the knowledge of at least one of the participants in the conversation, and that where the recording is made without the knowledge of any of the participants. 

Section 184(1) of the Criminal Code provides that anyone who wilfully intercepts a private communication is guilty of an offence. This rule is extensively qualified however. Thus, it is possible to intercept a conversation with the consent, express or implied, of the originator of the conversation⁹. It should also be noted that anyone who discloses such a recoding in connection with civil or criminal judicial proceedings is not guilty of an offence, even though the general rule is that disclosure of a communication intercepted without the consent of its originator is prohibited¹⁰. 

i. Recording with the knowledge of one of the participants 

Quebec courts unanimously recognize that a person may record his or her conversation with someone else without having to inform the latter that the conversation is being recorded. For example, the filing into evidence of a recording will be allowed in the following situations: 

• a person who feels fleeced by a co-contractor records their verbal exchanges in order to obtain an admission¹¹;
• a tenant films her landlord while the latter is in her apartment, without informing him that he is on camera¹²; 
• a resident of a long-term care facility installs cameras in her room – without informing the institution’s staff – in order to preserve evidence of any mistreatment¹³.

ii. Recording without the participants’ knowledge 

The situation becomes more problematic where the recording is made by a third party, without the knowledge of any of the participants. The case law recognizes that any interception of private conversations by a third party, unbeknownst to the participants in the conversation, is a breach of privacy¹⁴. However, such a breach may be justified if the interests of justice are better served by admitting the evidence than by excluding it. 

Consequently, courts ruling on the admissibility of such evidence place a great deal of importance on the specific facts of each matter and on the legal interest (standing) and legitimacy of the motives of the person who intercepted the communication. 

While such recordings are frequently produced in court, it remains difficult to discern a general rule regarding recordings made without the knowledge of the participants. Courts have for example allowed into evidence: 

• conversations recorded by an employer between employees and its customers¹⁵;
•  a recording made by an employer in the course of a surveillance operation in which an employee’s actions were caught on video¹⁶;
• a mother’s recording of a conversation between her child and the child’s father, given that the child’s interests were at stake¹⁷. 

b. The factors to  be considered 

In each situation, the Court must determine whether the right to privacy trumps the interest of getting at the truth. The Court of Appeal has held¹⁸ that the seriousness of the privacy breach must be weighed in light of the following three factors: 

1. The seriousness of the breach: the more egregious the breach, the more unacceptable it will be to allow the person responsible to benefit from it;
2. The goal underlying the breach: if a party is using the justice system to obtain a benefit to which it is not entitled – due to the absence of standing or a serious motive or purpose – it is far more likely that the evidence will be declared inadmissible;
3. The manner in which privacy was breached: the means used to obtain the recording and the reasonable expectation of privacy of the person(s) recorded will allow it to be determined whether the invasion of privacy was benign or serious. It should be noted in this regard that the use of a ruse, stratagem or other clandestine means to obtain a recording is not in and of itself grounds for excluding the evidence¹⁹.

By way of example, filming a public personality in the street will not be as serious a breach as installing a camera inside someone’s home without their knowledge. 

As these factors are not exhaustive, others have also been considered by the courts to determine whether admitting such evidence would bring the administration of justice into disrepute, including procedural fairness, the nature of the dispute, the extent to which the parties are in good faith, the effect that excluding the evidence would have, and the importance of the evidence at issue²⁰. 

c. Preserving the integrity of the recording 

The admissibility of a recording also depends on demonstrating its integrity and reliability. Thus, the party wishing to rely on a recording must be able to establish the circumstances in which the recording was made, and that its integrity has not been compromised²¹. In this regard, it is important to preserve the meta-data of the electronic file and to keep a copy of the recording in its original form. 

4. Conclusion 

The increasing sophistication of hand-held electronic devices is facilitating the use of recordings as evidence in judicial proceedings. In some circumstances, filing a recording into evidence may prove to be a delicate exercise if privacy rights were breached in obtaining it. In such cases, a balancing act will be required to determine whether the importance of the evidence so obtained outweighs the seriousness of the breach. 

If there is one takeaway from the case law in this area, it is that the most important consideration remains … the facts, just the facts and nothing but the facts!