One Party Consent in Canada
Is it legal for you to record a phone call in Canada without the knowledge or consent of other participants on the call? It is, but only if you:
- were the originator of the call,
- are the intended recipient, or,
- fall under a legal exception in section 184 (“section 184”) of the Canadian Criminal Code (“the Code”).
Assuming the aforementioned criteria does not apply, you can be prosecuted for an indictable offense (the most serious type of criminal charge in Canada) for recording a call without permission.[1] The resulting penalty could be a sentence of up to 5 years in prison.[2] Further detail in this regard is set out below.
Recording by Originator and Receiver of Calls
Section 9 of the Code requires all criminal offenses, apart from contempt of court, to be included in a statute. Taping or videoing of phone discussions by participants is not proscribed in legislation, so it is legal to do so. Moreover, this imprimatur also applies to recording of online video conference calls on Zoom, Microsoft Teams, WhatsApp, Telegram, or any similar application, if you initiated that call or were an intended recipient.
Five Exceptions Under Section 184
Under section 184, if you are not, in fact, the intended participant on a call but proceed nonetheless to intercept and record it, this would constitute a criminal offense unless you are:
- recording because an originator or intended participant of the call authorizes it;
- a person who on good faith aids another believed to have authorization from an originator or participant to record the phone call;
- a person who provides telephonic or communication service to public and intercepts a call out
- of necessity to provide the service,
- in the course of service observing or random monitoring necessary to conduct mechanical or service quality checks, or
- due to the fact the interception was necessitated by the need to protect a person’s rights or property directly related to the service.
- an officer or “servant of Her Majesty the Queen” (a government employee) who engages in radio frequency spectrum management and intercepts private communication for the purpose of identifying, isolating or preventing improper use of that frequency or transmission; or
- a person, or someone acting on their behalf, who intercepts private communications originating from, or going through, a computer system they control or possess if doing so is necessary in very specific circumstances set out in the Code.
It should be noted that exception (5) above, which deals with interception of a call through a computer system by a person in possession or control of it, mandates that any recording only be kept in limited circumstances, pursuant to section 184(3) of the Code.
Contributions to this blog by Kennedy McKinney.
