Can I record a conversation without telling the other person?

In detail

Section 184(1) of the Criminal Code punishes anyone who “knowingly intercepts a private communication” by means of a device. Subsection (2)(a) provides that this rule does not apply to “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”. Recording a conversation you are yourself part of therefore does not fall under the offence.

The fact that it is not criminal does not settle the civil side. Article 36 of the Civil Code lists, among the acts that may be considered invasions of privacy, intentionally intercepting or using a person's private communications, and appropriating or using their voice while they are in private premises. Section 5 of the Charter of Human Rights and Freedoms protects private life.

Finally, article 2858 of the Civil Code requires the court, even on its own initiative, to reject any evidence “obtained under such circumstances that fundamental rights and freedoms are violated and whose use would tend to bring the administration of justice into disrepute”. This is assessed case by case: the law gives no advance guarantee that a recording will be accepted.

What to document

The date, time and place of the conversation, who was present, the original audio file uncut and unconverted, and the context that explains why the recording was made.

Official sources

• Criminal Code, s. 184 (Laws of Canada)
• Civil Code of Quebec, arts. 35, 36 and 2858 (Légis Québec)
• Charter of Human Rights and Freedoms, s. 5 (Légis Québec)

Related questions

• Will the court accept my audio or video recording?
• Can I record a conversation between two other people?
• Can I film or photograph someone to prove what they are doing?
• How to present photos as evidence?
• Do my journal or personal notes count as evidence?

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