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Is It Legal to Surreptitiously Record a Phone Call?

Earlier this week, Prime Minister Trudeau removed Ms. Wilson-Raybould and Dr. Jane Philpott from the Liberal party.

The reason offered was that recording “conversations without consent” was unacceptable, and that an Attorney General recording a conversation with the Clerk of the Privy Council was “unconscionable.”

Ms. Wilson-Raybould, the former Attorney General of Canada, had recorded a December, 2018 telephone call between herself and the Clerk of the Privy Council, Michael Wernick. After being submitted to the Standing Committee on Justice and Human Rights, it became public.

It undeniably captured the federal government’s efforts to pressure Ms. Wilson-Raybould to invite SNC-Lavalin to enter a “remediation agreement”, sometimes called a deferred prosecution agreement (DPA).

“The trust that previously existed between these two individuals and our team has been broken,” the Prime Minister proclaimed.

Unconscionability can arise when a stronger party coerces, or otherwise abuses its power over, a weaker party.

Making the recording was likely not legally unconscionable. Ms. Wilson-Raybould was not attempting to coerce anyone or abuse power.  She had reason to believe her job was threatened. She felt a need to protect herself.

Some have implied it may be illegal to secretly record a call.

Under Canada’s Criminal Code, it is illegal to willfully intercept certain private communications. “Intercept” means to listen to, record, acquire or acquire the substance or meaning of the communication. This means that subject to certain exceptions, Canadians are not permitted to surreptitiously listen to someone else’s conversation, let alone record it. Subject to some exceptions, it is even illegal in Canada to possess surreptitious recording devices.

There are some significant exceptions, however.

For example, the “one party consent” exception permits monitoring private communications with the express or implied consent of either the originator of the communication or the person intended by the originator to receive the communication.

This exception may allow an employee to record certain of their conversations at work.

Different exceptions permit others, such as telephone or other communication service providers, to intercept calls in certain circumstances.  Canadians will be familiar with the “this call is being recorded” messages on some business telephone lines.

The above applies to recordings in a civil context by those who are not in supervisory positions of authority.

If someone in a supervisory capacity wishes to make a recording, additional considerations may apply.

The above is also different than the much more stringent rules that apply to the police. Those rules are more stringent because the police act on behalf of the state. A police wiretap could potentially result in a jail sentence if the person is convicted of a serious crime.

Police are not permitted to listen in on private conversations or “bug” an employer’s meeting room to gather information on a potential crime unless they have a warrant allowing them to do so, or other very limited exceptions apply.

Back to the recording of the Clerk of the Privy Council.

Some have suggested that Ms. Wilson-Raybould may have violated law society rules.

The Code of Professional Conduct of the Law Society of B.C. limits a lawyer’s ability to record conversations with clients or other lawyers “without first informing the other person of the intention to do so.”  Consent is not required.

There is an implied exception in B.C., however, if the lawyer has reasonable grounds to believe that the other party is a lawyer who will commit or indicate an intention to commit a criminal offence.

In circumstances involving an Attorney General attempting to uphold the rule of law and resist attempts to meddle in a criminal prosecution, it would not be surprising for a similar exception to be found.

Apparently the current Attorney-General, David Lametti, has sought an outside legal opinion on SNC-Lavalin.  Will it depart from the advice received by Ms. Wilson-Raybould’s department, that intervening would be “unprecedented”?

Canadians will have the opportunity to decide in the upcoming federal election whether others involved in this scandal should also be removed.

In the meantime, punishing these two women may not sit all that well with many Canadians, including professional women who may be able to relate all too well to their experiences.

This is a modified version of an article that appeared in the Kelowna Daily Courier on April 5, 2019, the Kelowna Capital News on April 7, 2019 and other online publications. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances.  If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca.  Check out our website, www.inspirelaw.ca.