As estate litigation lawyers will know, when a family is in turmoil and they are fighting over a Will even before the willmaker has died, there may be a temptation to secretly record telephone calls and family meetings as evidence to be used at a later time. In the 2021 decision of Madam Justice H J Williams in Rudin-Brown et. al v. Brown, the answer is you do so at your own peril. The courts’ official position, which is a derivative of family law is, don’t do it, it is a breach of family trust and only leads to family friction, disrespect and distrust. The bottom line is that the court has the ability to admit surreptitious recordings, if their probative value outweighs a court’s distaste for such actions and any prejudice it may cause.
The law is the following:
- Criminal Code section 184 prohibits the interception of private telephone conversations without the consent of the person who initiated the conversation or the person who intended to receive it.
- However surreptitious or illegal recordings is not the same thing as not being admissible.
- The court maintains the right to exclude otherwise admissible evidence when the prejudicial effect outweighs the probative value. The evidence may be excluded under this cost benefit analysis, if it’s probative value is overborne by its prejudicial effect. One can take a look at the Ontario Court of Appeal decision of R v. CYR and the Supreme Court of Canada decision of 1994 of R v. Mohan.
The court feels that secret recordings, especially in family law and estate cases, foster distrust and has a toxic effect on future relationships.
In other words, the law is muddled, and who knows whether or not a court would or would not down the road admit such secret recordings. One has to tread very carefully upon this swamp of illegal principles. You should consult with your Wills and Estates Lawyer who is an experienced Estate Litigation Attorney ( U.S. term).
