On July 27th the Supreme Court of Yukon ruled that a surreptitiously recorded telephone conversation was inadmissible in a family law proceeding.
The issue arose in an application to formalize a child support and access arrangement relating to a five year old child. The father was concerned about negative comments made by the mother to the child during phone calls she made during his period of access. The father recorded one such call. The mother was on speaker phone and knew that he “was in the room” while she spoke with her child. The father sought to adduce a transcript of the recording.
Despite commenting that the evidence was “highly probative to the extent that it confirms the mother’s blatant attempt to manipulate the child,” the Court excluded the evidence. It held that it would bring the administration of justice into disrepute to admit evidence obtained in breach of section 184(1) of the Criminal Code (intercepting a private communication) and that admitting the evidence would encourage a practice that was not in the best interests of the child.
There’s a section in The Law of Evidence in Canada that suggests a judge hearing a civil matter does not have a discretion to exclude relevant and reliable evidence even though it was obtained through unlawful means, though the Court cites to some British Columbia judgements that suggest otherwise. (I have not yet reviewed these judgements, but will.) The Court also does not explain the basis for finding that the father breached section 184(1) by making the recording, a finding that is debatable given the mother was on speaker with the father in the room and given the Criminal Code definitions of “private communication” and “intercept.”