Can I secretly record my ex-spouse?

Can I Secretly Record My Ex-Spouse?

Seems like something you should be able to do right? If an ex-spouse is talking to the children, or anyone else, some parents try to record those conversations to use against the other spouse later on in legal proceedings.  What parents will need to be mindful of is that this may actually trigger parts of the Criminal Code (“CC”) regarding the invasion of privacy.

The part of the CC that is important here is s. 184(1) which states that:

184.(1) 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.

This is further clarified by s. 184.5(1) which provides that s. 184(1) includes things such as cellphones:

184.5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication (emphasis ours), if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

If the ex-spouse were to consent to the recording, then there would be no issue with the recording as per s. 184(2)(a) of the CC:

(2) Subsection (1) 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.

Parents usually do not get the consent of the ex-spouse to actually record conversations their conversations, so they resort to recording them secretly in order to try and get some dirt on the other spouse.

 

How do courts handle secretly recorded evidence?

In general, courts do not appreciate it when parents secretly record each other, then try to use that evidence against the other spouse in court proceedings.

However, even though the courts do not like to see this kind of evidence, it does not mean that they would not use it if it was important enough.

Justice Spence in Scarlett v. Farrell  2014 ONCJ 517 at para 31 provides us with a metric to go by; it will have to be determined if “the probative value [of the secretly recorded evidence] outweighs the policy considerations against such recordings, then the courts will admit them into evidence.” This means that if the courts find that the contents of the recording are important enough, the recording may actually be admitted into evidence for use against the spouse who was recorded, despite the fact that the recording was obtained illegally.

So how do we determine when a recording will be admitted into evidence? There must be a way for us to know that we can record the other spouse based on what they’re saying, especially when the safety of the child is at stake?

To use a tried and true legal expression: it depends.

The case law is split on this issue and again, this boils down to the specific facts of each case.  Ultimately, the judges have to use their discretion when weighing all the evidence to make a determination.

There is a three-pronged test that we can use to help determine whether the evidence will be admitted as described in Matthews v. Matthews, 2007 BCSC 1825, [2007] B.C.J. No. 2747 at para 70:

(i) There is a limited discretion to exclude relevant evidence, regardless of how it was obtained;

(ii) The judicial exercise of that discretion involves a balancing of competing interests; and

(iii) The court should consider whether the probative value of the evidence outweighs the prejudicial effect on the party opposite and/or the reputation of the administration of justice.

This provides a good starting point to understand how the law works on this issue.  For more context, refer to the caselaw below regarding the admissibility of secretly recorded information:

 

Secretly recorded tapes admitted into evidence:

A.F. v. J.W. sub nom. Fiorito v. Wiggins, 2015 ONCA 729, var’g 2013 ONSC 4272.

  • father secretly recorded conversations between himself and the mother during access exchanges
  • recordings showed that mother was contraveining court order’s when she claimed she wasn’t
  • court considered these recordings to go to the root of issue of whether or not the mother was continuing her emotional abuse of the children
  • Justice Harper at para 56 said:
    • “However, in far too many cases, like the matter before me, the goal of building of trust became masked by one party saying one thing in public and doing something very different when she thought the she was safe from scrutiny.”

D.M. v. C.W., 2017 ONSC 7070

  • mother wanted to move to Pennsylvania,
  • father made recordings during access exchanges
  • father could not “cherry-pick” what court heard, court had to play entirety of all recordings
  • court at para 38 found that:
    • “audio recordings met the test for admissibility in that they were relevant to whether it would be in the best interests of the child to move with C.W. to Pennsylvania, more specifically, whether that proposed move would frustrate the positive access between the child and D.M.; that the probative value (or benefit) of the evidence outweighed its prejudicial effect (or cost)”

Secretly recorded tapes are NOT admitted as evidence:

Turk v. Turk, 2015 ONSC 3165,

  • The wife’s conversations with the children were recorded without her knowledge, on phones that were provided to the children by the husband.
  • The children were 21 and 17 years of age and neither were in need of protection from the court.
  • Court found that the recordings were prejudicial to the wife and her ability to have a fair trial.

S.C. v. J.C., 2009 SKQB 87, [2009] S.J. No. 121,

  • Text messages accessed between mother and child
  • Father had copied the text messages from his daughter’s phone while she was asleep.
  • Court found that manner of obtaining relevant evidence does not affect whether it will be admissible or not.
  • Court had difficulty determining reliability of evidence as there was no way of knowing whether messages represented the entirety of the communication between mother and child, or if they were taken out of context.
  • Would be significant prejudice to administration of justice in family law proceedings if evidence of this kind was admitted regularly.
  • Mother regularly texted daughter, admitting this evidence would hamper mother’s ability to text daughter and reduce daughter’s trust in Father.
  • Court found that this result could be different if the daughter was at risk in some way.