Can you record conversations in Canada?
Canada follows the one-party consent rule according to section 148 of the criminal code. This means in Canada, recording private conversations is legal provided one of the participants consents to the recording.
So if two participants are involved in a call, one of the participants can record the call without informing the other of the recording. The same applies when more than two participants are involved in a conversation, only consent from one party is enough. Non-participants are not allowed to listen in or record the conversation. According to section 148, it is against the law for a person by means of any electromagnetic, acoustic, mechanical or other devices, to knowingly intercept a private communication.
Any electromagnetic, acoustic, mechanical or other device refers to any device capable of intercepting private communication, except for hearing aid used to correct subnormal hearing of the user to not better than normal hearing. These include voice recorders, video cameras with audio capabilities, phones and any other gadget that can record audio.
Can Private Recordings be used as evidence in court?
Private conversations obtained through illegal interception are inadmissible in court unless for the purposes of proceedings:
- The conversation involves actual, attempted or threatened bodily harm.
- A judge authorizes an interception.
- The interception is done in respect of a search warrant or a warrant for the arrest of any person.
Interception by Law Enforcement
Police officers are allowed by law to intercept private communications under the following circumstances:
- At least one participant of the private communication has consented to the interception.
- The police officer has a reasonable belief that there is a risk of bodily harm to the person who consented to the interception.
- The interception is done for the purpose of preventing bodily harm.
In instances where there is a matter of urgency, police officers are allowed to intercept private communications provided the following conditions are met:
- Authorization cannot be obtained due to the urgency of the situation.
- The interception is necessary in preventing an offence that would cause serious harm to property or person(s).
- The originator or receiver of the private communication is the person who would commit the offence capable of causing harm or is the victim or intended victim of the harm.
Is Reasonable Expectation of Privacy Covered in the Law?
People have a reasonable expectation of privacy when they are in certain areas. These include areas such as bedrooms, bathrooms, changing rooms, etc. Generally, the rule of thumb applied here is, if you are not a party to the conversation or the person is in a private place where they expect to be alone, recording their conversations is illegal.
However, there are grey areas in the law when it comes to recording in shared spaces, or in areas where surveillance is typical. For example, if individuals are living in shared housing and there is surveillance equipment in the living room, it would not hold in court for a person to claim reasonable expectation of privacy in such a place.
Call Recording Laws for Businesses
Laws concerning call recordings for businesses are laid out by the Personal Information Protection and Electronic Documents Act (PIPEDA), although some provinces have their own provincial privacy act which regulates call recordings for businesses. Alberta, British Columbia and Quebec have their own privacy act, however, they are considered similar to PIPEDA.
Other provinces have health information laws that are considered similar to PIPEDA. These include:
- New Brunswick with Personal Health Information Privacy and Access Act.
- Newfoundland and Labrador with Personal Health Information Act.
- Nova Scotia with Personal Health Information Act.
- Ontario with Personal Health Information Protection Act.
In terms of call recordings regulations, when more than one law applies, businesses are required to comply with both regulations.
PIPEDA allows businesses to record calls by following the appropriate data practices outlined in the act. The act provides guidance on what practices are considered appropriate and inappropriate.
According to PIPEDA, businesses are required to obtain consent from their customers and inform them of the purposes of the recording. For example, if you are in a call with a business and receive the following message “This call may be recorded for quality assurance purposes” at the start of the call, you are deemed to have consented to the recording if you proceed with the call.
However, the law requires businesses to use recorded calls only for purposes identified by the business during the call. So if the call was for quality assurance purposes, the recordings cannot be used for anything else.
PIPEDA also states that users have a right to access their call recordings, information on how the recordings are used and disclosures of their recordings, upon request.
Penalties for Private Communication Interceptions
Persons who intercept private communications illegally may be found guilty of:
- an indictable offence and be punished by imprisonment term not exceeding 5 years, or
- an offence punishable on summary conviction.
Can You Record Conversations at your Workplace
In a workplace environment, employees can expect to be called into meetings concerning workplace performance or disputes. Employers may also want to record their employees during investigation meetings or when they are performing their day-to-day work duties.
So the question is, is it illegal to record private conversations in the workplace? According to section 148, you are allowed to record conversations that you take part in or record conversations as long as you have consent from at least one of the participants.
So if you are having a private conversation with your fellow employee or a manager, you can record the conversation without seeking consent. This is in line with the “one-party consent” exception. However, you are not allowed to record a conversation or a meeting held by your colleagues without consent by hiding a recording device in the meeting room.
Issues that may Arise from Recording in the Workplace
While you are allowed to record conversations that you take part in, your colleagues or your boss may not take it kindly to being recorded without consent. Carrying out surreptitious recordings may lead to issues of mistrust and create the impression that you’re recording with malicious intentions.
Keep in mind that you may be fired for secretly recording your conversations with your employer, be it in a meeting or a normal conversation. In Canada, the law allows employers to fire their employees for any reason or no reason at all.
If you’re relieved from work without just cause, you are entitled to receive a reasonable notice period or pay in lieu of notice, upon the termination of your employment. However, if you’re fired with just cause, you are not entitled to any notice or any severance whatsoever. So if you’re caught making secret recordings by your employer, your employer can terminate you without any severance package and argue your termination was for cause.
In 2017, a Manitoba court case involving secret workplace recordings, Hart v. Parrish & Heimbecker, Limited, 2017 MBQB, proves why it may not be a good idea to secretly record conversations at work. In this case, the plaintiff, Mark Hart was an employee at Stone Ridge Consulting before he was terminated for cause, after a series of complaints from his colleagues concerning harassment. Before his termination, he had been recording his conversations with management through his phone without informing them of his surveillance activities.
While the court found his termination was for cause because of other reasons, the court weighed in on the workplace recording issue by stating:
“The plaintiff’s inappropriate use of his cell phone in secretly recording meetings with his superiors does amount to a breach of his confidentiality and privacy obligations to the defendant. The plaintiff admitted on examination for discovery that he knew a breach of the confidentiality obligations could result in termination.”
“The misuse of his cell phone was also a breach of his personal code of conduct that he prepared as a result of his meetings with Stone Ridge Consulting.”
So it’s clear from this proceeding that the court does not approve workplace secret recordings because it amounts to misconduct or leads to an employer losing trust in an employee.
Can Employers Record their Employees?
Employers are allowed to record conversations between themselves and their employees. The employer or a representative of the employer must be a participant in the conversation for it to be a legal recording. However, such recordings will be subject to privacy legislation, which determines how employers collect and use their employees’ personal information.
Depending on whether your employer is provincially or federally regulated, a provincial privacy act or the federal Personal Information Protection and Electronic Documents Act (PIPEDA) guides the addresses the collection, use and disclosure of personal employee information.
For example, under the Alberta Personal Information Protection Act, organizations are allowed to collect personal employee information (including recorded conversations) for reasonable purposes if:
- it’s for the purposes of establishing, managing or terminating an employment or volunteer-work relationship between the organization and the employee.
- it’s for managing a post-employment or post-volunteer-work relationship between the organization and the employee.
The Alberta privacy act also requires employers to notify their employees that recordings are taking place and inform them how the recordings are going to be used.