Tape Recording a Conversation, wire tapping, eaves dropping, illegal tapping, tracking devices….
Tape recording your own conversation is legal in Canada and admissible as evidence in court. We recommend that during a pre or post separation/divorce situation that may be harmful, hostile or life threatening that each person carry with them a tape recorder. It is wise to record your events if your former spouse poses any risk whatsoever, but first an foremost is your personal safety-get out of harms way and call the police. Tape recording your conversations assuming the evidence is credible will provide the police with the necessary evidence to charge your spouse and compel him or her to be restrained from direct or indirect contact or coming near your home either through a “Recognizance for Bail” or another legal means or certificate.
Using wire tap, eaves dropping, illegal tapping the phone line, tracking devices such as GPS that are attached to cars are illegal and may lead to criminal charges. Although it is done all the time illegally just be aware that it is a criminal offense however, the police do not have to report this to you if they do it. You need to send them a written request which of course raises a red flag.
Are YOU or is your Life being Threatened?
If you feel that your life is being threatened , call 911 and have the local police sort out the situation. The content of any tape recording is admissible in court provided that it wasn’t used to entrap a person or for illegal purposes. Entrapping , means that you encouraged and cause a person to breach the Criminal Code of Canada that incriminates him or her for charges that will lead to criminal prosecution and possible conviction. Tape recording/s is permitted and is admissible as evidence for conversation/s which directly involved you in province of Ontario and in the rest of Canada. You do NOT have to disclose that you are recording the conversation as long it is a conversation that you are involved in directly or in conversation with over the telephone.
Illegal tape Recordings, wire or phone tapping
You are not permitted to tape record a conversation that you are not part of, for example, two other people, 20 or 30 feet away from you are having a private conversation. Taping that conversation is illegal. Or if you are listening to a private phone conversation and record it. Another example of tape recording your conversation happens whenever you call a private company (lets say a stock broker, or a credit card company) that has voice mail. One of the initial voice prompts will say “that we are recording this telephone call to better improve our service or for quality assurance”. What they really mean is that the telephone call is being recorded no matter what the reasons are and you have been duly notified of the recording. And therefore, if they choose they can introduce the tape recording to whomever they want and/or introduce it into court if and when necessary. So be aware that tape recordings happen all the time whenever you call into a corporation or small company and you hear such a recording. These corporations record conversations to protected its image and any ongoing business transactions. Other corporations such as casinos do it for voice and facial recognition purposes with the possibility to inform internal security or possibly police services for outstanding warrants. Government institutions do it as a means of protecting their staff from threats, death threats and other reasons. The point being , that once the voice prompt has notified that they are recording your phone call it is free game.
Tape recording your spouse while she talks to her new boyfriend?
You may be subject to criminal charges if you record a telephone conversations between your wife and her new partner if she is talking in the matrimonial home or in the car. More importantly is that you are not part of their (3rd party) telephone conversation. If however, she is aware that the home and car is equipped with tracking devices and/or recording devices and/or video devices and that property is owned by you exclusively, then there will be a debate as to whether the police will charge you or not. If you are charged you will have your day in court to prove the police wrong, of course the criminal lawyer’s fees may be substantial but you will have your day in court. Your defense may be that it is used for security reasons or some other justifiable reason. If you get a young police officer who wants to make his or her name you may get charged while the older (more seasoned) police officers may turn a blind eye and simply don’t want to get involved in these sorts of issues. If you come across a feminist police officer or an anti-feminists it could go either way depending on your lucky stars. Police are humans and they have their moments and sometimes it isn’t pretty.
Tape Recording your Court Hearing
Court houses and judges usually don’t permit you to tape record your court hearing. Judges usually make an order that recording is not permitted during the hearing. According to section 136 of the Courts of Justice Act, section 2(b) below has provisions to do so but in a manner the presiding judge says. This means you have the right to record your own court hearing however, in a manner that is prescribed by the presiding judge. If he or she says that you must stand or your head to record well that is what you have to do! Usually they are draconian at best and very ignorant of the law, they play stupid all teh time and simply do a paradigm shift into making you believe that they are sincere. Judges have no right to stop the recording bit they do all teh time. Sometimes they say you don’t need to record because there is a court reporter present but what they don’t tell you is that each page may cost you$3.50 plus plus plus…..and it can get very expensive. Whereas s if you have a recording it can be transcribed into an affidavit and commissioned. The Courts of Justice Act section 136 reads as follows:
“Prohibition against photography, etc., at court hearing
136.(1) Subject to subsections (2) and (3), no person shall,
(a) take or attempt to take a photograph, motion picture, audio recording or other record capable of producing visual or aural representations by electronic means or otherwise,
(i) at a court hearing,
(ii) of any person entering or leaving the room in which a court hearing is to be or has been convened, or
(iii) of any person in the building in which a court hearing is to be or has been convened where there is reasonable ground for believing that the person is there for the purpose of attending or leaving the hearing;
(b) publish, broadcast, reproduce or otherwise disseminate a photograph, motion picture, audio recording or record taken in contravention of clause (a); or
(c) broadcast or reproduce an audio recording made as described in clause (2) (b). R.S.O. 1990, c. C.43, s. 136 (1).
(2) Nothing in subsection (1),
(a) prohibits a person from unobtrusively making handwritten notes or sketches at a court hearing; or
(b) prohibits a lawyer, a party acting in person or a journalist from unobtrusively making an audio recording at a court hearing, in the manner that has been approved by the judge, for the sole purpose of supplementing or replacing handwritten notes. R.S.O. 1990, c. C.43, s. 136 (2); 1996, c. 25, s. 1 (22).
(3) Subsection (1) does not apply to a photograph, motion picture, audio recording or record made with authorization of the judge,
(a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing;
(b) in connection with any investitive, naturalization, ceremonial or other similar proceeding; or
(c) with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves.
Offence (4) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than six months, or to both. R.S.O. 1990, c. C.43, s. 136 (3, 4).”
Very often in court houses in Ontario , the Court Services personnel banned any recording devices as soon as you enter the court house. This is very biased and fascist based system to say the least and is an internal policy rather than the law. We have not seen the law that corresponds with what the Court Services personnel are doing. If you ask what law they are basing the enforcement of prohibiting recording devices in the Court House, the Court Services people have no clue whatsoever. Sometimes they point to a piece of paper on the wall that says something similar to “Recording Device not Permitted in this Court House ” even if your cell phone has a recording feature, it is prohibited. This is not LAW but is a print out of someone’s own doing and the staff of the court house may be challenged Constitutionally for arbitrary detention of personal property or illegal seizure. Keep in mind the court house has their own jurisdiction and usually and may operate outside of the law.
Several years ago (not sure what current practices are in place today) in particular Oshawa/Ajax of Ontario, the Ontario Court of Justcie courthouse – a criminal court simply prohibit all cell phones, recording devices to be brought into the court House (lawyers, judges, court reporters, crown personnel and police were the exception). If the law prohibits recording devices then it ought to be applied across the board to everyone. No one is above the law, not the citizens nor the Judges!
It is obvious that certain rules apply to some members of society and not others. Our courts practice a form of fascism! This is fundamentally wrong and establishes two distinct classes of citizens notwithstanding that this abrogation of law flies against the principles enshrined in our Constitution. This notion of recording devices is a regional policy because other Court Houses such as John Sopinka, 361 University, Toronto , Ontario and alike permit cell phones to be brought into the court houses but while in court rooms must be turned off.
One must ask what is really going on in these regional Court Houses that outright ban members of the public from bringing in their cell phones and/or recording devices as you enter them. Family Court houses are generally OK with bringing in cell phones however, the use within the Court Room is usually decided by the presiding judges. Ask yourself why criminal courts in some regions ban recording devices which include cell phones, android and Iphones when they themselves use these devices every day when entering court houses and while in court hearings?
Seek permission by the judge and cite the law permitting the recording to take place! Know your RIGHTS!
We recommend that you seek prior permission to record your family court appearance in the manner that is approved by the judge. Usually judges take exception to the recording device and say that the court has a court reporter present and that you may order the transcript from them. What is not disclosed is the fact that it may take several months to get the transcripts transcribed once it has been ordered notwithstanding that your court related matter will proceed regardless in most situations. Judges and the system ought to apply natural and equitable justice but our experiences is that this doesn’t not always happen in our court rooms. If you are faced with an unreasonable judge , you must make a legal argument as to why you need a recording pursuant to section 136(2) of the Court of Justice Act. The law permits each litigant to record his or her court proceeding but in a manner a judge advises. The outright ban is not enforceable because the law permits you to record however, good luck if you argue with the presiding judge.
It is always a good idea to be firm but not arrogant during the argument of tape recording your own court hearing. Although most Ontario judges make an order that the litigant is not permitted to record in his or her court room is contrary the legislation. Each person must advise the courts of this law and record freely what you are conveying to the courts to ensure that the hearing fair and just.
If the judge makes a ruling that no recordings can be made well you have the right to appeal that interlocutory order. It is usually a quick motion before a judge in the same court where teh appeal is taken. The process involves filing various court documents.
USA Tape and Video recordings
In the USA the police have gotten very clever in many states by using the wiring tapping law to stop you from “audibly” recording their actions while video recording is usually OK. They can charge you if you record them audible (their voices) and recording them in person by video because of course you are a 3rd party to a situation. The Law however, gets a bit ambiguous when you are directly involved with the conversation with them. Many police officers will charge you regardless if you only recording their voices and/or only recording them on video with no sound video (microphone muted) recording them because it gives them pleasure and the ability to intimidate civilians. Each person must review the laws and case-law (previous decisions) in each state to determine what your rights are.