One Party Consent In Canada
Can you record a phone conversation in Canada without telling the other people on the call? It depends on the specific set of circumstances that led to the recording.
Canada allows for recording calls if you:
- were the person who made the call,
- are the intended participant, or,
- fall under a legal exception in section 184 (“section 184”) of the Canadian Criminal Code (“the Code”).
If none of the above apply, you cannot record a phone conversation without being subject to criminal penalty. This could include prosecution for an indictable offense (the most serious type of criminal charge in Canada) and a potential penalty of up to 5 years in prison.
When Can you Record
The legal framework that permits recording is based on the fact that there is no legislation preventing it. All criminal offenses, with the exception of contempt of court, must be included in a statute, in accordance with section 9 of the Code. Recording of telephonic discussions is not actually prohibited in any criminal code. Accordingly, this means, pursuant to section 9 of the Code, recording calls by a participant or originator, without consent of the others in the conversation, is perfectly legal. This allowance extends to recording of conversations on WhatsApp, Telegram, Ms Teams, Zoom and other technological platforms as long as you initiated or legitimately received that call.
Section 184 Exceptions
If, however, you are not the initiator or person who receives a call but somehow intercept and record a conversation, this will only be legal if you are:
- recording because a legitimate participant on 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.
4. 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
5. 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.