BY: VALERIE DYE
We live in an electronic and digital world where persons not only correspond by e-mail and text messages but individuals are in possession of all types of electronic devices that will allow them to record conversations with third parties. With the availability of modern technology, it has become quite common for spouses to snoop on each other by recording telephone conversations or by making secret videos of their activities. This temptation becomes more pronounced once spouses become involved in litigation and in particular family law litigation. When parties have a question as to who is cheating on the other, or how much child support should be paid or who is entitled to have custody of the children, snooping may seem like the best thing to do in order to gather enough ammunition to be used in court.
Before taking action to secretly record conversations or make videos of the other party’s activities, it is important to be aware of the provisions of section 184 (1) of the Criminal Code. That section provides as follows:
Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offense and liable to imprisonment for a term not exceeding five years.
This provision applies to everyone and therefore includes spouses who may or may not still be married to each other. There are cases where spouses have faced criminal prosecution for secretly making recordings of the other spouse’s communication. For instance, in the 2015 case of N.R.I.H vs. M.G.S.H. reference was made to the fact that the husband was criminally prosecuted for secretly recording his wife’s conversation. In the 2012 case of R v Hubbard the husband was also prosecuted and found guilty of entering the home of his estranged wife and planting a listening device.
In many cases, spouses feel that they are justified in intercepting communication in order to get to the truth. Nonetheless, given the likelihood of criminal prosecution, it may not be worthwhile to give in to the temptation of recording your spouse’s private conversation or secretly making videos of your spouse’s activities in order to get to the truth.
Apart from the likelihood of criminal prosecution, intercepting a spouse’s private conversation may be totally useless, as the recordings may not be allowed as evidence in court. For instance, in the 2006 case of Hameed v Hameed the court refused to accept into evidence, the recorded telephone conversations that the husband had made without the wife’s knowledge. The Judge stated that ‘Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged’.
There are a few exceptions to Section 184 (1) of the Criminal Code. For instance, if the person being recorded gives express or implied consent for the recording to take place then there will be no criminal liability. Furthermore, police officers, service providers or agents of the state may be allowed to intercept private communication in certain circumstances. Authorization may also be obtained from the court where necessary to allow for the intercepting of private communication. Apart from these exceptions secretly recording your spouse or any other person may have a serious backlash.
