Can You Record A Conversation Without Consent?We are often asked if it is illegal to tape record a conversation that you are having with someone else. This question seems to come up more often given the widespread availability of recording devices on smartphones such as the iPhone. The picture below depicts an iPhone recorder which is very easy to use and allows one to surreptitiously record the conversation you are having with someone.

Record A Conversation in an Injury Claim

In an injury claim this may be used by the insurance adjuster without your knowledge, although the normal situation is that the insurance adjuster will tell you he or she wants to take a statement from you and wants to record the statement. At this point in time you would decline and tell the insurance adjuster you need to seek legal counsel before giving a statement, but that is a topic for another day.

Can You Record A Conversation Without Consent?

The answer to the question whether or not you can secretly record a conversation you are having with another person: yes you can. Furthermore it is not illegal; section 184 of the Criminal Code makes it illegal to willfully intercept or record a private communication, say with a recording device hidden behind a wall switch.

Secret Recording device

However this does not apply to a conversation you are having with someone else as that is not considered a private communication. In other words, by virtue of the fact that the person is speaking to you they are consenting to you hearing their words.

So there is a fundamental distinction from, for example, placing a secret microphone in someone’s house to listen in on two other people having a conversation that you are not a party to, and simply recording a conversation you are having with someone with your smartphone.

To use those recordings in trial your injury lawyer simply has to make the other side aware of the recordings before the trial and that you will be relying upon those recordings. In a recent Alberta case in Edmonton Mr. Justice Graesser in a case called T.(T.) vs. T.(J.), 2012 ABQB 668, which involved a divorce case, not a personal injury case, the court noted that there is little recent law on whether in a civil case the courts have a discretion to exclude tape recorded evidence. The main body of law is to the effect that relevant evidence is admissible in civil cases no matter how it was obtained.

Therefore, bottom line is if you are involved in litigation be very careful what you say to someone you are talking to because they could be secretly recording your conversation with their iPhone, Blackberry or other smartphone and that evidence may be used against you as you have consented to the conversation and it may well be relevant and admissible evidence in an injury case.