Written by Camille Boyer, Senior Family Lawyer at Crossroads Law, Calgary
Imagine you are in the thick of a family law dispute, emotions are running high, and you’ve got a covert recording of your ex that you are sure will be the key to your case – you just need to get it in front of a judge. But wait! Before you press ‘play’ in the courtroom, it is important to understand how the courts evaluate this type of evidence.
In Alberta, the legality and admissibility of these recordings in family law cases are complex issues that require careful consideration. This blog explores the legal framework governing secret recordings, examining key cases and policy considerations that influence their use in family law proceedings. We'll also discuss practical tips for individuals considering the use of such recordings. Whether you're involved in a family dispute or simply seeking to understand this aspect of Alberta's family law, we’ve got you covered.
The Legal Perspective
Recording without consent: what does the law say?
Let's address the primary concern - is it legal to secretly record conversations in Alberta? According to section 184(2) of the Criminal Code of Canada, the answer is a tentative yes. To clarify, as long as one person who is party to the recording consents, secretly recording a conversation is not illegal (hint: that one person could be you).
But hold your enthusiasm. The story doesn't end here.
Admissibility: Will your recordings be allowed as evidence in the litigation?
So, you've got your secret recordings, and you're ready to use them to bolster your case. Not so fast. While the law may not expressly prohibit these recordings, whether the courts will allow you to submit those recordings as evidence in your case is a different issue altogether.
Generally, in Alberta, the courts are hesitant to allow secret recordings as evidence in family law matters.
The following cases delve into how courts have addressed the admissibility of such evidence in the past:
1. AJU v GSU, 2015 ABQB - in this 2015 landmark case, the Alberta Court of Queen's Bench examined whether secret recordings can be used as evidence in family law cases. They explained that just because a recording is legal doesn't mean it can automatically be used in court. The justice emphasized the delicate balance between the potential relevance of the evidence and the potential harm it could cause to the parties involved. The court concluded that there is a single principle that governs the issue:
All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court’s need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.
Essentially, this means that while the court generally dislikes using secret recordings, it will still consider them if they are highly relevant and helpful for the case. The court will weigh the importance of the information in the recordings against the reasons not to use them. If the recordings provide valuable evidence, especially in matters concerning children's best interests, the court may allow them as evidence.
2. BLS v JJC, 2023 ABKB 573 – in this more recent case from 2023, the Alberta Court of King's Bench revisited the issue of secret recordings. In this case, the father wanted to provide the court with secret recordings of the mother that directly contradicted her sworn version of events. Although the recordings were relatively probative (i.e. relevant), the court refused to admit the recordings into evidence echoing the sentiments of AJU v GSU. The court highlighted the importance of considering the policy reasons behind excluding such evidence, pointing out that the harm caused by using secret recordings in court can be greater than their usefulness or relevance.
The Policy Perspective
You might be wondering, why there is a hesitation to include these recordings. Family law cases involve sensitive matters, and the courts in Alberta are keenly aware of the potential harm that can arise from the use of secret recordings. This might include:
A. Trust and communication – trust is a fundamental element of any co-parenting relationship, and secret recordings have the potential to unravel that trust to the point of no return. The court, recognizing the importance of fostering open communication in family matters, is cautious not to encourage behaviour that could undermine this essential element.
B. Privacy concerns - this is another key consideration. Family law cases often delve into personal and intimate details of individuals' lives. Allowing unrestricted use of secret recordings could violate the privacy rights of the parties involved, creating a slippery slope that the courts are keen to avoid.
C. Evidentiary reliability - beyond trust and privacy, there's also the issue of the reliability of such recordings. The circumstances under which these recordings are made can be questionable, leading to doubts about their authenticity and accuracy. A person wishing to “catch” their ex, and therefore secretly record them, may have staged the situation, or cut out or altered certain parts of the conversation. A person who knows they are being recorded has an advantage, and will be on their best behavior, whereas the unsuspecting party is more likely to misbehave. Therefore, a secretly recorded conversation is not reflective of the actual dynamic between the parties. The court, aiming for fair and just proceedings, is wary of relying on potentially flawed evidence.
Practical Considerations
Before you embark on a recording spree, consider the following:
1. Assess the relevance - not all recordings are created equal. Before hitting the record button, carefully consider whether the content is truly relevant to your case. Courts are more likely to entertain evidence that directly speaks to the issues at hand.
2. Explore alternative options - instead of relying on secret recordings, explore alternative avenues to gather evidence. Witness testimonies, documents, and other admissible forms of evidence may prove to be more effective in supporting your case without the potential drawbacks associated with surreptitious recordings.
3. Consult with legal counsel - it's always wise to seek legal advice before taking matters into your own hands. An experienced family law legal coach can provide guidance on whether secret recordings are a good idea and, if so, how to go about it without jeopardizing your case.
The use of secret recordings in Alberta family law cases is a complex and nuanced issue. As we have seen, the legal and policy considerations are intricate, balancing relevance against potential harm and privacy concerns. While secret recordings can sometimes be powerful evidence, their admissibility is not guaranteed and is often met with hesitation by the courts. To ensure you are making informed decisions in your case, and to avoid potential pitfalls, it's important to get professional legal advice. Navigating these delicate matters requires expertise and sensitivity. Ready to understand more about the implications of using secret recordings in your family law case? Schedule your free 20-minute consultation with a legal coach from Coach My Case today.
