Recording without consent: Legal pitfalls in elder law and estate conflicts

Family tension can run high in the world of elder law and estate litigation. Parties must navigate complex interpersonal relationships, with months, years, or even decades of history that can be difficult for a judge to later understand. When issues are centred around vulnerable and ageing loved ones, would a video tell the whole story? Maybe, but probably not; and you might find yourself in serious trouble, if you record someone without their knowledge.

Secret Recordings

Surreptitious recordings are audio or video recordings taken of a conversation or activity without the consent of all parties who are present. A common example occurs when a person records a conversation in person or over the phone, without telling the other person they are being recorded.

The person recording the conversation may have any number of motivations to do this, but is it legal? And if so, how helpful is it really?

Recording someone without their consent can be illegal in Ontario. A surreptitious recording is a criminal offence under section 184 of the Criminal Code of Canada when someone knowingly records, by any means, a private communication between other parties. Not only is recording a private communication illegal but, except in limited circumstances, it can be prohibited to even possess the recording. An individual can be criminally charged for secretly recording conversations, even of family members.

It is not a criminal offence if you are part of the conversation you are recording. However, that doesn’t mean the recording would be helpful or even admissible as evidence in court.

In Ontario, the court has repeatedly expressed wariness about relying on surreptitious recordings. This reluctance is more explicit in certain areas of law, like family law, where surreptitious recordings are generally inadmissible in most circumstances. While case law has developed in family law, many of the court’s concerns are echoed in proceedings involving estate litigation, capacity disputes, and elder law.

The court’s concerns about surreptitious recordings often follow common sense questions about the reliability of this as evidence. In Tilger v Tilger, the Superior Court judge excluded surreptitious recordings and outlined reasons why such recordings may not be reliable. These concerns include questions like whether the recording has been edited, whether it’s an accurate representation of the conversation, if it truly represents someone’s feelings and intentions, the motivation of the recorder, the possibility that the recorder provoked the incident, and other issues. The court has repeatedly expressed concern that the person making the recording knows to be on their best behaviour and can steer the conversation, and that they may have many recordings and can pick and choose the one that best fits their agenda.

In some cases, the court may rule that a recording is inadmissible, or may choose to give little weight to this type of evidence if it decides the risk of relying on the recording outweighs its possible benefit. As always, there are exceptions.

With quickly evolving technology this area of law may continue to change shape. While surreptitious recordings may not be effective as evidence, in-home technologies can assist aging and vulnerable populations. For example many families now incorporate in-home monitoring devices to help monitor and protect elderly or vulnerable family members. As these technologies evolve recordings may become more common. Individuals should be mindful of the risks of surreptitious recordings and seek legal advice to address any concerns.

If you find yourself asking, “To record, or not to record?” seek legal advice first.