Original post by Howard Levitt, published in the Financial Post, April 2nd, 2019.
The topic of whether it’s legal to tape record a telephone conversation with a colleague has become a matter of heated debate these past few days.
The release of a recorded conversation between Jody Wilson-Raybould and Michael Wernick, former clerk of the Privy Council, has solidified many Canadians’ view as to whether the former attorney general was pressured on the question of striking an agreement with SNC-Lavalin that would see it avoid a court case on corruption charges.
Wilson-Raybould’s detractors have suggested that making the recording itself was less than honest and she should therefore not be trusted in anything she says. Critics have suggested there is something illicit and perhaps even illegal in the act.
When it comes to the legality of making a recording of a conversation, the law is straightforward, and also not.
It is not a criminal offence for anyone to record their own conversations at any time. Theoretically, one could walk around surreptitiously recording every conversation that one has. Those tapes would be admissible in court as evidence.
The rules are different for lawyers, who are forbidden by both law societies from recording conversations in a solicitor-client context. It is arguable that Wilson-Raybould and Wernick were not involved in a privileged conversation as she was not providing him legal advice.
But one could also argue that since she was discussing her advice to the government and what she intended to do, and since he was purporting to represent the Prime Minister, who was certainly her client, it was a privileged conversation. So ostensibly, although not illegal, her tape recording would be a presumptive violation of law society rules.
Her situation is similar to that of an employee. Although it is generally legal to tape record your conversations, most employers would consider that antithetical to their corporate culture and therefore, quite possibly, cause for discharge.
After all, how many employees would want to work in an environment in which their conversations were being surreptitiously recorded by co-workers. That would obviously have a negative impact on employee morale. Also, not many employers would want their sensitive information to be recorded without their knowledge or consent for potential redistribution.
I have raised this issue, when acting for employers, as cause for discharge and had those cases dropped in response.
Even if an employer had a policy prohibiting such recordings, if an employee is dealing with toxicity or an illegality in their workplace — as Wilson-Raybould credibly asserted — and they have good reason to believe that the other person in the conversation would not be truthful, it is my view that a court would not consider it cause for discharge.
I suspect that the Law Society would take the same view of Wilson-Raybould’s taping of Wernick, as a necessity to protect herself and to prove a potential illegality.
However in the workplace, you had better get it right. The test is objective and, if the court does not believe both that you were uncovering an impropriety and that the other parties to the conversation appeared likely to deny it, taping a conversation would likely be cause for termination without severance.