Article written by Axis Geffen
Let me begin with a reminder. There are always caveats and nuances that are different from jurisdiction to jurisdiction outside of Ontario. Although the information provided applies fairly globally and in many jurisdictions. Before you record another person, the onus is on you to ensure that this article applies to you. Including your situation and the jurisdiction(s) that you A) intend to create the recording, and B) intend to use the recording that you made. (Yes, that’s right, the rules can differ from the time, date and location that you make the recording to the time(s), date(s), and location(s) you intend to use that evidence.)
Can You Record Them?
Recording subjects (people, places, or things) can be tricky to pull off legally depending on the circumstances. It can be shocking to the person that took the video when they get slapped with a lawsuit or liability. One for improperly collecting that evidence or breaking privacy laws along the way. This is because a lot of people assume that if you can legally buy a tool, then you can logically use that tool. However, as countless young drivers can attest after their day in court for infractions related to aftermarket vehicle “upgrades”… Just because you can buy a product, doesn’t mean it’s legal to use it. So, you really need to understand the rules before you head out thinking you’re a genius. Many people end up in court on very serious charges because they “thought they knew” instead of “knowing” the law.
The entire notion of “Reasonability” seems to confuse a lot of people. Investigators included. When I started as a private investigator many years ago, I made a horrible mistake by asking my superiors what was “reasonable or not” in collecting evidence. I had no idea that most of my peers never asked that question. Back then especially, there was a strong belief that asking forgiveness with a bottle of Scotch or a day on the golf course was much better than failing to collect evidence in the first place.
In time, I learned that other than the ex-cops in our field, most PI’s had no clue what was okay. (It’s not that much better today). Generally speaking, PI’s were given insane tasks to complete, they did “what was necessary” and submitted their evidence. Then lawyers did the leg-work to figure out how to use the evidence collected or justify its existence.
AReasonable Expectation of Privacy
A Reasonable Expectation of Privacy can be explained as the most important rule of evidence collection ever. It applies to everyone, everywhere and it is completely subject to who is reviewing the matter in front of them. For example, a more Conservative Court of the 1970s would strongly support that it was very reasonable for a PI to run a license plate number. To find out who owned a vehicle, where they lived, a general description of the person… Then in turn use that information to determine if the unknown car observed near the subject’s house was the person their spouse was cheating with.
Conversely, a more Liberal Court of today would flatly deny said evidence and apply penalties to the PI, the lawyer, and the client for running the plate in Ontario. It’s no longer reasonable to do so for any Domestic (Family Law) matter. So, “Reasonability” changes with time, political influence, demographics, and the level of the court considering the matter.
To save on time, let’s just agree that: Everybody (including your ex) has the basic right to general privacy. Privacy when not in public, not near other people, and in any place that most “reasonable” people would agree is generally private.
People often confuse being indoors with having a reasonable expectation of privacy. They are not the same thing. Being in a public washroom, you have a reasonable expectation of privacy. Nobody should be recording you without a special judges consent to record. Standing amongst 50 people in the middle of Chapters… It would not be reasonable for you to believe that no other person could hear what you’re saying. Likewise, in a changeroom. You could reasonably expect that no person should be watching or listening to you try on clothes. But sitting in a food court, it is very reasonable to suggest that someone may be watching over the area (security) or that other people might see or hear you.
It’s Not A Party Until You’re Involved!
In Ontario, you can generally record video of someone that is in public. However, there are rules about how or if that video can be shared with others. On the other hand, recording sound is not allowed unless you are a party to the communication. Contrary to common misconception, this does not mean that you can only record someone that is talking to you specifically. If you are close enough to record the conversation in person, then (barring a few circumstances) you’re generally in the clear.
But I Was Always Taught To Share?
When it comes to collected audio or video evidence, you could still be in a heap of trouble depending on how you choose to make use of that evidence. Even if you have followed all of the rules and recorded the other party legally. Depending on where you are or what the circumstances are, you might be required to blur the faces of any (and every) unrelated party that shows up in your video (even for a second). Or face liability and/or charges for breaking the law. (That can be a lot of work and can add a lot of costs). Additionally, if you get mad and put that video on social media, you might face civil lawsuits. There could be a case for defamation of character, invasion of privacy, stalking, criminal harassment, hate crimes, and/or a number of other charges, liabilities, fines and/or jail time.
In the end, you’re always best to engage a qualified PI to record any audio or video you think you need. Furthermore, retain that PI through your qualified lawyer because…well, that’s another story. Thanks for reading. Please share.