Is It Legal To Record A Conversation In Ontario?

There may be a legal situation that presents wherein you may believe one or more recorded conversations can benefit your defence or argument.

It may be a white collar offence, sexual assault, a dispute with an ex-partner, or a presumed off-the-record private discussion with a police officer. Anyone with a smartphone has a mic and a recorder on their person, and it’s easier than ever to secretly record conversations without the other person knowing.

It’s critical, however, to understand the legal framework of what’s involved in recording a conversation. There are issues of consent, privacy, and compliance at play when discussing recording phone calls, in-person conversations, or any form of digital communication.

So, is it legal to record a conversation in Ontario?

 

Yes it’s legal, If You’re A Part Of The Conversation

In Ontario, if you are recording a conversation that you are involved in, it is generally considered to be legal.

As long as one of the parties involved in the call consents to the recording, according to Section 184 of the Criminal Code, you are legally allowed to record a private conversation.

No matter how many people are involved in the conversation, you do not need to legally inform the others or the person you are having the conversation with that they are being recorded. This is known as the ‘one-party consent’ rule.

Such a conversation can prove immensely valuable if you are attempting to defend against a controversial accusation, such as child luring or sexual abuse. In fact, in many cases, a recorded conversation has played a key role in avoiding a conviction for some.

However, if you are not a participant in the conversation, intercepting or recording it is illegal and could lead to criminal charges.

Furthermore, it does depend on who you are. A lawyer, for example, is prohibited from recording a conversation with a client or anyone without their express permission. It’s not permitted by the Law Society of Ontario.

 

How A Reasonable Expectation Of Privacy Impacts Recording A Conversation

Even when recording a conversation you’re part of, reasonable expectation of privacy matters.

Yes, you may have legal consent to record, however, a recording should not infringe upon a person’s reasonable expectation of privacy, especially in sensitive settings. If so, this may be something that can be challenged in court.

Consider where the conversation is that you want to record.

• If it’s somewhere such as a bathroom, this is considered a private area and no recording should occur here.
• In a public setting, however, there is no reasonable expectation of privacy.
• There are some grey areas as well, i.e. closed offices, a quiet corner of a space, or inside of a car.

As already mentioned, it’s essential to be present and actively participating when you record a conversation. Hiding in a closet or underneath a desk and recording a conversation is deceptive and considered illegal.

 

Can I Record A Conversation With A Police Officer In Ontario?

Many people want to talk to a police officer off the record or attempt to converse with police privately to get information.

If you are considering recording these conversations, you can. You can record a police officer when they are executing their duties in a public space, such as a sidewalk, public park, or public road. With regards to private property, however, you may need permission from the property owner.

For law enforcement to record you or any other civilian, by comparison, they need a cause and a warrant.

 

Consult A Lawyer Before Recording

While recording may be legal, it could still expose you to criminal liability or civil lawsuits if:

• The recording is intended for unlawful purposes.
• The recording is distributed without consent.

The authenticity of audio recordings can also be scrutinized in certain contexts. The fact that anyone can create and edit a recording, or apply AI to generate a fake recording further complicates matters in a court case.

Always consult a lawyer if you intend to record a conversation and then use said recordings as part of a legal defence.

 

Do Not Edit Your Recorded Conversation

Though it is not illegal to do so, a recording that has been edited or trimmed can affect credibility. It can be damaging to your case, even if it’s done innocently or to highlight a specific section of an extended recording.

Always submit the entire recording as evidence to ensure it is admissible in court. Even if there is information on the recording that could damage the judge’s perception of you, it’s strongly recommended to submit the entirety of the recording or nothing.

This is often a concern in sexual assault accusations and disputes between spouses, where the party who owns the recording has concerns over how they will be perceived.

Even if some content damages your case, submit the full recording to avoid credibility issues from selective editing.

 

How To Submit An Audio Recording As Court Evidence

There is no guarantee your lawyer or a court will accept a recorded conversation as relevant evidence to your case. Here is what you can do.

• Preserve the metadata to demonstrate the authenticity of the recording.
• Keep the original audio file and note the time, date, and context of the conversation.
• Ensure clarity without editing the file, ensuring dialogue is distinguishable.

To introduce audio evidence, the circumstances of the necessity to record the conversation inconspicuously must be substantiated. This approach to recording may have been the only way to demonstrate ongoing abuse, harassment, or intimidation. A justification is required.

In a legal or court proceeding, you are also required to submit admissible audio evidence in a certified transcript completed by an experienced court reporter.

These transcripts should be completed accurately, ensuring the dialogue is carefully assessed and stated.

 

Reach Out To Kruse Law For A Free No-Obligation Consultation

Kruse Law offers free consultations for criminal defence matters, such as sexual assault, white collar offences, and more. Contact us to speak to a lawyer about your case and whether a conversation you’ve recorded or are interested in recording is worth the effort to obtain it.

As your lawyer, we will go through the details and circumstances of your case with you, asking questions and providing guidance on what the best approach may be to move forward with. The consultation is free.

Please don’t hesitate to contact a Kruse Law criminal defence lawyer today to find out more on how we can help.

 

Frequently Asked Questions

Is it legal to record a phone call in Ontario?

Yes, if you are a part of the phone call, you can legally record it. It is like any other communication format.

Should I seek consent from participants in a recorded conversation?

You may wish to, depending on the circumstances. However, you don’t have to. How you seek consent can be verbal or written if it’s a more formal setting. The courts and your lawyer understands that in some situations, it may not be safe to disclose to the other party that they are being recorded.

Can I share recordings I have made with others on social media or privately?

It’s best not to share recordings or release them publicly when you do not have the other party’s consent. Unless you have explicit permission from all persons involved, retain any conversations you have recorded specifically for you and your lawyer.

Do I need to provide a transcript alongside my audio recording?

Yes. In a legal proceeding, there needs to be a transcript provided with any audio recording. Especially if the recording is lengthy or contains complex details, an accurate transcript is an accessible way to review the evidence. It can also help to clarify what is said over irrelevant background noise or interruptions in the conversation. In fact, some judges prefer to rely on the transcript over the actual recording.

Can I record a conversation with my boss or another employee at my work?

Yes, you can legally record talks with your boss under the one-party consent rule. That said, there are limitations, such as not being permitted to record in a workplace changing room or during personal patient care. When there is confidential or classified information being shared in a work conversation, this could also pose a privacy issue. Furthermore, if your employer finds out you are recording secret conversations, you run the risk of a termination.