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Audio/Video recording - Consent withdrawal

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  • Audio/Video recording - Consent withdrawal

    So as a lot of us know by now that Canada is "one party consent" when it's come to audio recording of conversation which you part of.

    Question what I try to clear out for my self and hopefully for others about Consent withdrawal.

    So if I wrote a letter or said before conversation that I do not consent to audio recording can other party still record it?

    I tend to think that it's become illegal to continue to record it. It might even get you into trouble under CCC.

    Can anyone with more experience in this topic (like Mess as I saw from several posts) confirm this or opposite?


    Thank you,
    WD

  • #2
    everything I read says that you can record as long as you are one of the people, that you do not need the others person consent.

    Not sure how it applies if you say at the start of the conversation that you do not consent to being recorded.

    Comment


    • #3
      I agree with standing.

      The Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] imposes a general prohibition on interception (recording) of private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. Thus, broadly speaking, Canadians can legally record their own conversations with other people, but not other peoples' conversations that they are not involved in.

      You can tape a conversation with a party without there knowledge or approval.

      Physical writings is another ball park. Any communications or conversations is permissible. You cannot intercept any of these not going to you

      The basic rule is that it is illegal to intercept a private communication.
      Section 184(1) of the Criminal Code sets out the general rule that it is illegal to willfully intercept a private communication:

      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.

      The meaning of “intercept”
      Section 183 of the Criminal Code provides the following definition for intercept:

      "intercept" includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.

      What constitutes a private communication
      The statutory definition of private communication
      Section 183 of the Criminal Code provides the following definition for private communication:

      "private communication" means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it.
      (emphasis added).

      The communication requirement
      The difference between a communication and a conversation was explained as follows by the Supreme Court of Canada in R. v. Goldman, [1980] 1 S.C.R. 976 [Goldman]:

      In my view, the difference between the word conversation and the word communication is, in the context of this statutory provision, significant. A communication involves the passing of thoughts, ideas, words or information from one person to another. Conversation is a broader term and it would include, as all conversations do, an interchange of a series of separate communications.
      (Goldman at 995).

      The Court in Goldman further explained that the “originator” of the communication “is the person who makes the remark or series of remarks” in question(Goldman at 995), which means that there are multiple originators in any conversation.

      A communications must be directed from one person to another. Therefore, a prayer to God is not a communication: R. v. Davie (1980), 54 C.C.C. 92d) 216 (B.C.C.A.).

      The privacy requirement
      The wording of the definition for “private communication” indicates that the test for the privacy element is objective, not subjective i.e. the question is “should the originator reasonably have expected their communication to be intercepted?” and not “did the originator actually think that the communication would be intercepted?”

      In R. v. Tam (1993), 80 C.C.C. (3d) 476 (B.C.S.C.) [Tam] the British Columbia Supreme Court considered whether ransom calls made by kidnappers to the father of the victim were “private communications”. The court held that they were not private communications because the accused had no reasonable expectation that they would not be recorded or listened to by other people:

      In these circumstances, I fail to see how it could possibly be said that the ransom callers had any expectation of privacy... The callers had to know that [the victim's father, Mr. Cheng,] probably would involve others and there probably would be interceptions, tape recordings of the calls or disclosure by Mr. Cheng of the substance of the calls. They had no reason for believing that the communications would be kept private, as between them and Mr. Cheng. If they did have any expectation of privacy, it would have been based on their own attempts to intimidate Mr. Cheng and would not be a reasonable expectation.
      (Tam at 479).

      In R. v. Lubovac (1989), 101 A.R. 119 (C.A.) it was held that messages sent to a pager were not private communications because, given how the pager system in that case operated, persons other than the intended recipient may have heard the message:

      [T]he pager simply broadcasts a message to those who may happen to hear – or overhear – it. The originator has no control over who may hear his message beyond the intended recipient.
      (Lubovac at para. 20).

      In R. v. Robertshaw (April 1, 1996), Philp J., (Ont. Gen. Div.) it was held that a 911 call was not a private communication.

      The one party consent exception to the rule against interception
      Statutory provision setting out the one party consent exception
      Section 182(2) of the Criminal Code sets out a number of exceptions to the general rule that it is unlawful to intercept private communications. The most important exception for the purposes of this article is the exception that applies when one of the parties to the communication consents to interception i.e. s. 184(2)(a):

      184(2) Subsection (1) [i.e. the section prohibiting interception of private communications] 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) [an interception done under the authorization of a warrant];
      (c) [an interception by a telecommunications company providing services to the public who intercepts for the purpose of monitoring the quality of service];
      (d) [an interception by a government agent monitoring the airwaves for illegal use of particular radio frequencies]; or
      (e) [an interception by persons managing the quality of certain computer services to ensure that those computer services are not used illegally].

      Thus any intended recipient of a communication is entitled to record it.


      Text messages
      Hand writing
      emails

      Have a different process of submission. They have to somehow traceable to the party.

      Easiest way to try and get it through is a request to admit

      If not

      Hand writing verification
      Proof through email address verification
      Proof through phone number verification

      Comment


      • #4
        Originally posted by WorkingDAD View Post
        So as a lot of us know by now that Canada is "one party consent" when it's come to audio recording of conversation which you part of.

        Question what I try to clear out for my self and hopefully for others about Consent withdrawal.

        So if I wrote a letter or said before conversation that I do not consent to audio recording can other party still record it?

        I tend to think that it's become illegal to continue to record it. It might even get you into trouble under CCC.

        Can anyone with more experience in this topic (like Mess as I saw from several posts) confirm this or opposite?


        Thank you,
        WD
        The best way to handle this situation is to not communicate with the person through any means but one that records both people in the conversation. Do not address the other person and notify all parties involved in the matter that the person in question may be recording the conversation.

        Best thing is to say nothing in the presence of the other person and do nothing that would be used against you.

        Furthermore, recordings are useless in court and rarely are accepted unless there is something serious like a threat of violence on them. There are numerous orders in CanLII where parents are ordered NOT to allow anyone to record things.

        Good Luck!
        Tayken

        Comment


        • #5
          Originally posted by Tayken View Post
          The best way to handle this situation is to not communicate with the person through any means but one that records both people in the conversation. Do not address the other person and notify all parties involved in the matter that the person in question may be recording the conversation.
          It's quite hard to do when you come to doctor appointments, daycare CAS interview and so on. CAS actually advised that recording (of exchanges on that time) should be stopped. Mommy do not care...

          Comment


          • #6
            Originally posted by WorkingDAD View Post
            It's quite hard to do when you come to doctor appointments, daycare CAS interview and so on. CAS actually advised that recording (of exchanges on that time) should be stopped. Mommy do not care...
            Unless there is something to be concerned with in the recordings resulting from conduct of the party being recorded. I say let the other party record good conduct all they want maybe. Some times you have to let the high-conflict party screw up and demonstrate to the court they are angry, bitter and high-conflict.

            If the CAS can't get to the person and explain to them why they shouldn't do it and they don't take their advice... No doubt a judge will do something about the problem.

            Why bother recording something when there are third party witnesses like doctors around? Unless you are trying to demonstrate malpractice by the doctor. Or some collusion between the doctor and the other parent. But, really, a person doing that has crossed over into another state of mind. One that requires clinical involvement to solve not the court.

            Good Luck!
            Tayken

            Comment

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