What is the test for admitting surreptitious participant recordings?

Ontario, Canada


The following excerpt is from R. v. G.J., 2012 ONSC 5413 (CanLII):

The general rule is that relevant evidence is admissible. That rule is subject to limited discretion to exclude where the balance of probative value and prejudicial effect weighs too heavily on the side of prejudice. It does not involve application of the Charter per se. The court in Mathews identifies four areas of prejudice that are involved in the determination of the admissibility of surreptitious participant recordings as follows: i. Prejudice to the party opposing the admission of the evidence. This mirrors the probative value enquiry. To the extent that the evidence is of uncertain provenance, is incomplete or capable of manipulation it will operate prejudicially; ii. Prejudice to the trial process. In Seddon v. Seddon [1994] B.C.J. No. 1729, the proponent asked the court to listen to twenty hours of recordings. In Rawleck v. Rawlek [2003] B.C.J. No. 2231, the proponent asked the court to listen to recordings amassed over a period of three years comprising hundreds of hours of tape and the written transcript was heavily annotated; iii. Prejudice to the reputation of the administration of justice that would arise by admission. This highlights the inherent unfairness when one party is unaware of the recording. It is particularly odious in family law disputes where conduct is statutorily discouraged as a basis for deciding property, support and child care disputes – these recordings are notorious for having little or no probative value. Experience suggests that once the raw emotion of the failed relationship passes it is in everyone’s best interests to maintain core trust. A child who learns of a parent’s recorded manipulation may never trust again. The prejudice is significant; iv. Prejudice to the reputation of the administration of justice that would arise by exclusion. The court in Mathews posits that when highly reliable evidence showing active physical abuse of a young child is excluded it adversely affects the reputation of the administration of justice. Discussion

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