From time to time BC Courts struggle with the issue of whether evidence obtained through secret tape recording is admissible in a civil trial. Reasons for judgement were published yesterday by the BC Supreme Court, Vancouver Registry, addressing this topic.
In yesterday’s case (Lam v. Chiu) the Plaintiff sued the Defendant for damages based on unjust enrichment. Prior to trial the Plaintiff had a conversation with the Defendant that he secretly recorded. In the course of the discussion the Defendant arguably acknowledged the alleged debt.
The Plaintiff sought to introduce the secret recording at trial. The Defendant opposed arguing secretly recorded evidence is too prejudicial to be admitted at trial. After thoroughly canvassing several authorities addressing this area of the law Madam Justice Gray found the evidence should be admitted. In doing so the Court provided the following reasons:
[25] So I am going to summarize the law I have referred to by saying that there is a discretion in the court to exclude evidence where the prejudicial effect outweighs the probative value. There are cases where the court has commented on the practice of recording household conversations between family members and described that as odious. The court has also referred to illegal tape-recording, that is, tape-recordings when no party to the conversation had consented to it being recorded.
[26] The case before me is not a family case. It is not a case where custody is in issue and it is not a case where the recording took place in the household of a family. The recording, in fact, took place primarily on the street outside Ms. Chiu’s workplace. It is not a case where there is an ongoing relationship of trust between parents.
[27] This is a situation where the relationship between Mr. Lam and Ms. Chiu has broken down, and there is no need for them to have an ongoing relationship except to resolve the lawsuit before me. It is not a case of a large volume of material. It is a case of one recording. It is not a case where the recording is being put forward to show a general practice of how someone interacts with their children as in the Seddon case. It is a case where there is an allegation about a narrow point, that is, discussion about the existence of a loan.
[28] I will summarize the factors in this case as follows. First, with respect to probative value, I will say that I have to refer to it for the purposes of considering admissibility and, at this stage, I am not weighing the evidence or making any comment about what weight, if any, should be given to the evidence. In my view, there may be some probative value to the tape-recording. There is some concern about the statement by Ms. Chiu, that, “But I tell you, you want to have the $100,000. No way because you treat me like that. That’s pay for it.” There may also be other utterances by Ms. Chiu giving rise to concern, but that is the one that is most prominent, in my view.
[29] I also consider the probative value in contrast with what the situation would be if the recording is not admitted. Mr. Lam could testify that he met with Ms. Chiu, demanded the payment of the loan, that she did not deny that it was owing, and she said she had no intention of repaying it. That summary might well be accurate, but it would not give the full flavour of the conversation which is available from considering the recording and the transcript. So there is some probative value to having the full conversation reported as accurately as it can be.
[30] In terms of prejudice, there clearly is unfairness when one party knows that a conversation is being tape-recorded and the other party does not. That is clear on the evidence and can be taken into account on considering what, if any, weight the evidence ought to be given. Mr. McMillan argued that the context was prejudicial. However, Ms. Chiu can supply any more evidence she chooses about the context of the discussion including any other background and any other concerns about the language.
[31] The matter which gave me the greatest concern was the question of the impact on the administration of justice of permitting the admission into evidence of a surreptitious recording. I am not sure that I can characterize this surreptitious recording as odious. That was a term used by Mr. Justice Thackray and embraced by other judges, but when they were referring to recordings in a home with an ongoing parental relationship and, as I have said, that does not apply here. Whether it is odious or not, the recording was certainly unfair. It is not criminal because Mr. Lam knew the recording was being made. As I have said, the recording was staged and therefore unfair, but that is apparent from the recording.
[32] This is a not a clear case. In my view, there is some probative value to admitting the full recording, and the concerns about prejudice are not sufficiently significant that the recording should be excluded from evidence, primarily because any concerns about them are clear on the recording itself.
[33] So my ruling on the voir dire is that the recording is admissible.
