Area of Law: Private Investigation
Answer # 987
Is it legal to record a conversation, tape a call, or 'bug' a telephone?Region: Ontario Answer # 987
Generally, it is illegal to secretly record oral communications between two or more people unless you have the consent of at least one of the individuals involved, or you are one of the parties to the conversation.
Criminal Code offence
There is a general prohibition against interception of private communications of others by use of electronic or other devices. The Criminal Code provides that everyone who, by any electro-magnetic, acoustic, mechanical, or other device, willfully intercepts a private communication, may be imprisoned for up-to five years. The Criminal Code also grants a punitive tort award of up-to $5,000 if the aggrieved person has not commenced a separate civil proceeding. A licensed private investigator can help with these types of investigations.
The exception: consent
The exception is when there is consent by at least one of the parties involved in the communication. The Code provides that the offence does not apply to a person who has the consent of the person who originates a private conversation or the person intended to receive it. This consent can be explicit or implied. Implied consent exists if you are actually a party to the conversation. In 1993, Parliament further clarified the meaning of consent by adding a section which states that when a private communication is originated by more than one person or is intended to be received by more than one person, consent to the “interception” can be given by any one of those persons.
Police and other agents of the government
For the purposes of recording and intercepting private conversations, police and other agents of the government are governed by the same rules as private citizens. Other than in exceptional circumstances, the police must obtain prior authorization from a judge by way of a warrant. The police are also under various disclosure rules specific to covertly obtained audio evidence.
In 1993, Parliament passed a new criminal law creating an offence for the interception of cellular telephone communications. This section provides that every person who intercepts by any means, maliciously or for gain, a radio-based telephone communication is liable to imprisonment for up-to five years if the originator of the communication, or the person intended by the originator to receive it, is in Canada. This reversed a line of cases that held that cellular telephone conversations were not private communications. It is interesting to note that this section creates an offence only where the interception was made maliciously or for gain.
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