Barrie Hayes, Partner, Family Law.
The admissibility of audio or video tape recordings are, like any other potential evidence , to be ruled on by a judge. In determining the admissibility of any evidence a judge will consider the basic evidentiary concepts such as; Is the evidence relevant or material to the issues being tried? Is the evidence necessary to the proper determination of the issues being tried? Is the prejudicial effect of the admission of the evidence in question outweighed by the probative value of the evidence to the issues being tried?
Section 184(1) of the Canadian Criminal Code provides that it is illegal to willfully intercept(record) a private communication. This prohibition, however, does not apply if either the originator of the communication or the person intending to receive communication consents to the recording. As long as the person recording the conversation is a party to the conversation the recording is not illegal.
Even if the tape recording has been obtained illegally (i.e. the person recording the conversation was not a party to the conversation), the Family Courts have sometimes admitted the illegal tape recording as evidence.
Although the courts have consistently stated that illegally obtained tape recordings are repugnant to the court and should be discouraged as counterproductive to an amiable settlement of a separation, in child custody cases where the court has felt that the probative value of the tape recording in assisting the court in determining the best interests of the children outweighed the prejudicial effect of admitting the evidence the court has admitted the evidence.
The admissibility of the tape recorded evidence will depend on the particular circumstances of each case.
The accuracy or reliability of the tape recording is sometimes an issue in determining admissibility. In the event that a tape recording is made it is recommended that a transcript of the recording be made.