One of the jobs in criminal litigation is parsing through infinite pictures, hours of video footage, and endless scrolls of text messages. It means stitching together emails, voicemails, and social media posts to create a timeline of what actually happened. An art collage of this magnitude can take days, even weeks or months. But it’s precisely this groundwork that ensures no argument gets left on the table, so that you receive the best possible defence.
When you provide your lawyer with digital evidence, you may not be sure whether any of it will actually help your case. You might be wondering whether these recordings are even allowed? What can you legally record in the first place? What can be admitted as evidence? And could the very thing you think will help you end up hurting your case instead? Let’s answer these questions and define the parameters for collecting digital evidence.
Recording in Private vs Public Places
You can freely record video and take photos of anything plainly visible in public areas, including police officers performing duties, because there is no expectation of privacy. However, recording video or taking images where people have a reasonable expectation of privacy (like locker rooms, washrooms, or inside a private home without permission) can violate privacy laws or trigger criminal voyeurism charges under Section 162 of the Criminal Code.
Is it Legal to Secretly Record a Conversation?
Under Section 184 of the Criminal Code, recording an audio conversation is legal as long as at least one party to the conversation consents – that party can be you. Secretly recording a conversation between two other people when you are not a participant is illegal.
It All Starts with a ‘Reasonable Expectation of Privacy’
The rules for video recording are based on whether one has a ‘reasonable expectation of privacy’. Courts look at the ‘totality of circumstances’: did the person who was recorded subjectively have an expectation of privacy? And was that expectation objectively reasonable?
In R v Jarvis, the Supreme Court of Canada established a multi-factor test for determining whether a person who was recorded ought to have had a reasonable expectation of privacy. Important factors include:
- The location where the recording occurred;
- The awareness or consent of the individual;
- The manner of the recording (i.e., was it fleeting or sustained, meaning it caught the individual for a brief second or involved active filming for a prolonged period);
- The subject matter (i.e., does the recording focus on intimate body parts?);
- Any rules or policies that govern the recording in question;
- The relationship between the parties (i.e., does one individual hold a position of trust or authority over the other?);
- Relevant personal attributes of the person recorded (i.e., are they a young child?).
The main takeaway from Jarvis is that privacy is not “all-or-nothing”. Context matters. One can still have a ‘reasonable expectation of privacy’ even in semi-public spaces like malls, school hallways, classrooms, and even private offices in a workplace.
Rules for Video Evidence in Court
For a video to be admissible in a criminal court, it must clear several legal hurdles. First, the video must directly relate to a fact at issue in the case. It cannot be introduced solely to prejudice the judge or jury. Second, a witness must testify under oath that the video is a fair and accurate depiction of what actually happened. This can be the person who filmed it, or someone familiar with the scene. Lastly, to determine the integrity and reliability of the footage, the court may examine if the video has been improperly edited, manipulated, or cut.
The video must also be compliant with the Charter of Rights and Freedoms. If the video was captured by police, it must comply with Section 8 of the Charter, which guarantees protection against unreasonable search and seizure. If police film a private space without a warrant, that video evidence may be thrown out. Private citizens are generally not bound by the Charter, meaning a video shot by a civilian is rarely excluded on Charter grounds.
There are special provisions in the Criminal Code that apply to vulnerable populations. Under Section 715.1 of the Code, pre-recorded video statements from victims or witnesses under 18 years old can be admitted as direct evidence, provided they adopt the video’s contents while testifying. Similar rules apply to individuals with physical or mental disabilities under Section 715.2 of the Code.
Ultimately, knowing these rules helps you understand what’s actually working in your favour, and what might not be admissible at all. If you have a criminal law matter, we have a trusted team with decades of experience ready to review your evidence and build the best defence you need.