Audio & Video Recording - Re: Consent

Bissonnette v. Windsor Police Services Board, 2018 HRTO 1701

[13] Under Section 184.2, a police officer can also obtain authorization to intercept a private communication by application to a judge. In order to obtain authorization the judge must be satisfied that there are reasonable grounds to believe that an offence has or will be committed.

[14] Sections 184.1 and 184.2 of the Criminal Code are clearly related to how evidence may be obtained by a police officer in the course of a criminal investigation, and when such evidence would be admissible in criminal proceedings. Though "on duty" at the time, the applicant was obviously not involved in a criminal investigation when she met with the Deputy Chief for the debrief.

[15] Furthermore, it is not clear that this amounted to a “private communication” as defined in the Criminal Code. The prohibition applies to a third party intercepting communication; for example, a police officer recording a phone conversation between an informant and an individual being investigated for an offence. There was no third party here; the recording was conducted by the applicant, a peace officer, who was also “the person intended by the originator to receive it”, under the definition of “private communication” in s. 183.

[16] I do not accept the respondent’s argument that the Criminal Code imposes a higher legal standard on a police officer in a situation such as the December 2013 meeting between the applicant and Deputy Chief Derus, such that the “one party consent” rule would not apply. There is a fundamental difference between the circumstances of how the recording was made in this case and the circumstances where s. 184.1 applies. As such, I do not agree that that the recording is inadmissible at the Tribunal under s. 184.1 of the Criminal Code.

[17] As I found that the recording was relevant to this proceeding, and is not otherwise inadmissible, I permitted the recording to be entered into evidence.