Is it a Crime to Record a Conversation?

• It is not a crime and legal in Canada to record a conversation as long as at least one party consents to the recording. It is legal to record a conversation between you and another person, or persons, but not legal to secretly record a conversation between two other people without their knowledge.
• As such, the law in Canada draws a distinction between recording a conversation you are involved in and one that you are eavesdropping on.
• The Criminal Code of Canada, imposes a general prohibition on recording private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. The maximum sentence for surreptitiously intercepting or recording a conversation is 5 years in jail
• If state authorities such as the police want to record conversations that none of the officers will be involved in they can apply for a judicial authorization by way of a warrant, permitting them to eavesdrop in on the conversation that believe may reveal evidence of a crime.

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Some relevant sections of the Criminal Code of Canada that deal with the recording of private conversations are listed below:

• Section 184(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

• Section 184
(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,

(i) if the interception is necessary for the purpose of providing the service,

(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or

(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;

(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or

(e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for

(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or

(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or 430(1.1).

• 184.1 (1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if

(a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;

(b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and

(c) the purpose of the interception is to prevent the bodily harm.

• If you have been charged with a criminal offence please contact Kostman and Pyzer, Barristers today for your free consultation!