Former attorney general Jody Wilson-Raybould ignited a firestorm in the already-heated SNC-Lavalin scandal on Friday by revealing that she secretly recorded a phone call with Privy Council Clerk Michael Wernick.
The 17-minute recording backs up Wilson-Raybould’s Feb. 26 testimony to the House of Commons Justice Committee in which she alleged that Wernick hinted that her job as justice minister would be in jeopardy if she didn’t intervene in the criminal prosecution of SNC-Lavalin.
Wernick’s lawyer deemed Wilson-Raybould’s recording of the call as “inappropriate.” Indeed, Wilson-Raybould herself acknowledged that recording the call was an “extraordinary and otherwise inappropriate step.”
Law societies like the Law Society of Ontario, of which Wilson-Raybould is an honourary member, prohibit lawyers from recording calls with clients without clients’ express permission.
The Canadian Bar Association code of conduct also prohibits lawyers from recording anyone without permission.
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In her position as attorney general and justice minister, Wilson-Raybould was effectively the top lawyer for the Canadian government, prompting questions about whether her recording of a conversation with Wernick — the government’s top civil servant — constituted a breach of professional regulations on client-attorney conversations.
However, the controversy surrounding Wilson-Raybould’s decision to record the call has to do with the fact that she did so in her capacity as a lawyer and cabinet minister.
Laws governing the rights of individual Canadians and businesses are laid out in the Personal Information Protection and Electronic Documents Act (PIPEDA), Criminal Code and provincial regulations.
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Here’s a broad overview of what Canadians and businesses operating in Canada can and cannot do with regards to recording phone calls:
Section 184 of the Criminal Code states that recording private conversations is legal as long as one of the parties involved in the call consents to the recording.
It’s called the “one party consent” exception.
That means the second person involved in the call does not have to be informed that the call is being recorded. If several people are involved in a phone call, it’s still legal for one of them to record it without informing the others.
Recordings made with the consent of one party may be used as evidence in lawsuits.
However, you can’t intercept and record the private phone conversations of others. Doing so can land you in prison for up to five years.
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Laws governing the recording of phone calls by businesses are set by PIPEDA, although exceptions apply in some provinces.
Under PIPEDA, businesses may record calls for purposes that are reasonable and appropriate, with the text of the law offering guidance on the interpretation of what’s appropriate and what isn’t.
Businesses must also secure customers’ consent and state the purpose of the recording. This can be done passively — for example, if you call your bank or cell phone provider and get an automated message saying “This call may be recorded for quality control purposes” and you proceed with the call, your consent is implied.
However, businesses recording conversations for a stated purpose of quality control are prohibited from using the recording for other purposes such as marketing or customer profiling.
PIPEDA also gives Canadians the right to request access to call recordings, although the Office of the Privacy Commissioner of Canada notes that Alberta, British Columbia and Quebec have their own private-sector privacy laws that may apply over PIPEDA.
There are a few circumstances in which businesses can record customer phone calls without customer consent. These include debt-collection calls, calls made to investigate potential fraud and calls where it’s deemed that informing the customer that the call is being recorded could hurt the organization’s ability to obtain accurate information.
Canadians who have questions about the legality of phone call recordings and other privacy matters can contact the Office of the Privacy Commissioner of Canada.
— With files from the Canadian Press