Is Using Secretly Recorded Audio Allowed in Court? | Russell Alexander Collaborative Family Lawyers
These days it is rare to find someone over the age of 12 who doesn’t own a Smartphone of some type. These impressive little devices are filled with an array of apps and hi-tech features, including the ability to record dazzlingly-accurate photos, videos, and sounds.
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00:25
These days it is rare to find someone over the age of 12 who doesn't own a Smartphone of some type.
00:32
These impressive little devices are filled with an array of apps and high-tech features,
00:38
including the ability to record dazzling- accurate photos, videos and sounds.
00:47
But it's important to realize that the ease or technological ability to do something,
00:53
doesn't make it legally appropriate, right or permissible.
00:58
Case in point: Surreptitious audio recordings.
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The Ontario court offered a quick lesson on this topic in a recent Family Law case called M.P.M v. A.L.M.
01:15
The backdrop was a high-conflict dispute between parents over
01:19
custody and access of their two children.
01:24
As part of the evidence for the court's consideration, the father tendered
01:30
a total of eight surreptitious-recorded audiotapes, while the mother tendered one.
01:39
Most of these centered around the father’s pick-up and drop-off at the mother's home for access visits,
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although some involve recordings of phone conversations between
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the parents or other family members.
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If you're enjoying this video and find it helpful, then give us a thumbs up or leave a comment in the box below.
02:03
In outlining the Canadian law around secret audio recordings, the court noted two key points:
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It is an offense under Criminal Code (in section 184),
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to “knowingly intercept” a private communication by means of any mechanical or acoustic device.
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For these purposes, the Code defines as
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“knowingly intercept” to include “record” (that’s found in section 183).
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This being the case, it was against the criminal law for the parents
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to create the audio recordings they now wanted to tender into evidence.
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(And while the Criminal Code allows for a narrow set of exceptions -
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including where the person recording the private communication has the express
02:57
or implied consent of the “originator”
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(this is in section 184(2)(a) of the Criminal Code)
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- none of them applied to this particular case or fact scenario.
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