In Rudin-Brown et al. v. Brown AND Brown v. Rudin-Brown et al. the admissibility of surreptitiously obtained telephone conversations was considered in the context of competing applications for guardianship of an incapable person, and a challenge to a previously executed power of attorney document by the incapable.

Facts

The Applicants, the incapable’s daughter and her sister-in-law, sought guardianship of the incapable, and a declaration that a 2016 power of attorney for property document executed by the incapable in favour of the Respondent, her son, was invalid due to a lack of capacity.

As part of their response, the Respondent provided 15 tape-recordings that he made of the incapable’s conversations.

The Positions of the Parties

Considering the admissibility of the recordings, the Respondent argued that the recordings were made with his mother’s consent, and that they were necessary as a part of the evidentiary record because they provided a voice for the incapable and demonstrated her fear of autonomy and the influence that her daughter exerted upon her.^[1]

The Applicants claimed that the recordings should be given little weight because, amongst other things, they were selective and not representative of the full story of events; they had little probative value because they were created in the year following the Respondent’s alleged appointment as the incapable’s power of attorney for property; they violated the incapable’s privacy; and surreptitious recordings should be discouraged by the courts.^[2]

The Relevant Admissibility Factors

Considering the admissibility of the recordings, Justice Williams first rejected the Respondent’s position that the recordings were in fact made with his incapable mother’s consent.

Having found that the tapes were made surreptitiously, Justice Williams then referred to s.184 of Canada’s Criminal Code which prohibits the interception of private telephone conversations without the consent of the person who initiated the conversation, or the person who was intended to receive it.^[3]

Yet, the surreptitious or even illegal nature under which the recordings were obtained was not determinative of their admissibility, as Justice Williams considered the general inclusionary rule that “although there are exceptions, the manner in which evidence is obtained, no matter how improper or illegal, is not an impediment to its admission at common law.”^[4]

Within this notion, Justice Williams set out the further general exclusionary discretion of the court to exclude otherwise admissible evidence if:

1. the probative value is overborne by its prejudicial effect;
2. it involves an inordinate amount of time to present the evidence that is not commensurate with its value; or
3. it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material.^[5]

Finally, reference was also made to the overarching family law principle that surreptitious audio and video recordings should be strongly discouraged by the courts, in part because they foster distrust and have a toxic effect on future relationships.^[6]

Application to the Within Matter

Applying the above considerations to the recordings produced by the Respondent, Justice Williams ruled in favour of admitting the recordings, although little weight would be afforded to the incapable’s portion of the conversations, because, amongst other things:

1. the recordings were not being admitted for their truth so much as for the fact that the Applicant’s statements on the recordings were in fact said;
2. the recordings have probative value despite being made in the year after the contested power of attorney for property document was made because the recordings show that the Applicant and incapable were regularly communicating and that the Applicant communicated fears about the Respondent’s care of the incapable;
3. the incapable’s portion of the recordings may be misleading as the Respondent produced selective recordings, and in doing so may not be giving the incapable a true voice in the matter
4. the incapable’s portion of the recordings may have been influenced by the Respondent being present at the time they were made; and
5. the incapable clearly did not know that she was being recorded.^[7]

As a result of this decision, individuals attempting to admit surreptitious recordings should first strongly consider their probative value, their prejudicial effect, the efficiency with which the information can be presented, and the reliability of the information as balanced against its level of persuasiveness.

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[1] Rudin-Brown et al. v. Brown AND Brown v. Rudin-Brown et al., 2021 ONSC 3366 at paras 20 and 21.

[2] Ibid at para 22-26.

[3] Ibid at para 28.

[4] Ibid at para 28.

[5] Ibid at para 28.

[6] Ibid at para 30.

[7] Ibid at para 35 and 36.