With smartphones so widely available, the ability to discreetly audio record conversations is easier than ever. The question then becomes: “What can I legally record?”. The answer is heavily dependent on the context. What may be permitted under criminal law may have serious consequences in an employment context.
Criminal Context: Section 184
Under Section 184 of the Criminal Code of Canada – it is illegal and considered an invasion of privacy to intercept a private conversation without at least one party’s consent.
Under the “One-Party Consent Rule” only one of the parties actively participating in the conversation has to consent to the recording. Therefore, it is generally legal to record a conversation with another employee or manager if you are an active, voluntary participant in that conversation – and you do not need to inform the other parties. However, if you are “eavesdropping” or “intercepting” a conversation you are not a part of this would be a criminal offence under Section 184.
It is important to note that even if a recording is lawful under the Criminal Code, it may still raise issues under privacy laws, professional conduct rules, or other legal frameworks.
Recordings in the Workplace
Even if a recording complies with the Criminal Code, it can still violate workplace policies or constitute a breach of trust in the employment relationship.
Many employers have workplace policies that ban unauthorized recordings in the workplace and violating these can give rise to disciplinary action and even termination. Recording discussions regarding confidential information may also constitute a breach of confidentiality duties. This can include, but is not limited to, employee and client data, sensitive company information, and proprietary trade secrets.
A surreptitious recording can also sever the trust in the employment relationship to an extent that warrants termination for cause.
Furthermore, regulated professionals are often subject to additional obligations regarding recordings and client confidentiality. For example, lawyers are subject to stringent professional ethics which forbids them from recording calls and conversations with clients without their express permission.
Are these recordings admissible?
A recording made under the one-party consent rule may be used in court and in tribunals as long as it is in compliance with the rules of evidence for that jurisdiction. Generally, the recording must be authentic, reliable, and relevant to the issues of the case.
Admissibility and the weight (importance) of the evidence depends on the circumstances. The party attempting to admit the evidence must satisfy that the file is authentic; meaning it was not edited or tampered with. Edits, cuts, or manipulations to the audio file will raise doubts about its credibility and can render it inadmissible. The audio must also be clear enough for the judge or tribunal to understand what is being said and who is speaking.
Advice for Employers and Employees.
Although recording a conversation can serve as valuable evidence, it is important to ensure the recording complies with the Criminal Code, workplace policies and obligations, and will be admissible in a hearing.
Employers should implement clear, explicit workplace policies regarding the recording of meetings and conversations to protect company data and ensure a clear standard for discipline.
For employees, although the recording may not lead to criminal charges, consequences may follow if it violates company policies or breaks the trust.
Ultimately, the legal, professional, and evidentiary consequences of a recording depend entirely on the situation. To ensure compliance and navigate these legal boundaries, it is important to speak to a legal professional.
Greenwood Law specializes in helping both employers and employees understand their rights and obligations. Contact us today by calling 416-686-4612 or requesting a consultation online.
