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Recent Cases

Intercepting Private Communications – Charges Withdrawn

Our criminal lawyer in Calgary, Ms. Williamson recently represented a young woman charged with intercepting a private communication contrary to section 184 of the Criminal Code. In this case, it was alleged that she secretly placed a recording device into an object so as to capture private communications which could be used in subsequent legal proceedings. Ms. Williamson successfully got her criminal charge withdrawn.

Is it a Crime to Record a Conversation?

We are often asked if it is a crime or a criminal act to record a conversation. In Canada, it is legal to record a conversation so long as at least one party is consenting to the recording. However, it is illegal to secretly record a conversation between two other people without their knowledge. The law in Canada imposes prohibitions on recording private communications but allows for an exception when one party consents to the recording. This means you cannot (legally) install or secure a recording device to record conversations when you are not present and not a party to the communications.

Provisions of the Criminal Code

Section 184(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or another device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years

Wiretaps and lawful Intercepts of private communications

The Criminal Code allows law enforcement officers to be able to intercept communications so long as certain judicial authorizations are met. Specifically, the sections of the Code that allow for this are:

Section 184
(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

(c) a person engaged in providing a telephone, telegraph or another communication service to the public who intercepts a private communication,

(i) if the interception is necessary for the purpose of providing the service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;
(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of transmission; or
(e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system if the interception is reasonably necessary for
(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or
(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or 430(1.1).

 184.1 (1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or another device, a private communication if

(a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;
(b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and
(c) the purpose of the interception is to prevent bodily harm.

What is the penalty if I am convicted of intercepting a private conversation?

The maximum sentence for surreptitiously intercepting (or recording) a conversation is five years imprisonment.

What can my defence lawyer do for me if I am charged with intercepting a private communication?

Intercepting private communications is not a typical offence for an accused to face. A careful analysis of the disclosure and alleged facts is the first main step. Comparing this information to the information you provide your lawyer is required and then building a strategic defence will flow from this work.

If you have been charged with intercepting a private communication contact Alberta Legal today. We are serious lawyers who defend serious allegations every single day.

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