Do you have to notify police you are recording them during an interaction....

[Bike Cop]

I don't believe that is specifically mentioned. Although it may have bren tried already, with the wiretap laws applied. Anyone with more knowledge on this??

I wasn't 100 percent on this, so I checked with a prosecutor in one of our courts. His words, "I'm not aware of an obligation to inform someone if they are being recorded if they are directly involved in the conversation".

Also, "There is no disclosure obligation on the defence other than reports and CV's of expert witnesses. However, if it's alibi evidence, it's reliability diminishes as time goes by if it's not disclosed to the police".

I know that may seem contrary to what's been said earlier. What I take away from it is this: if you want to record the police, go ahead. If you want to use the recording as an alibi defence to a charge that you are facing, you must disclose it so it can be investigated for its merits. If you want to present the recording as evidence to the contrary, but not an alibi, there is no disclosure obligation.

And, when in doubt, always consult with legal representation. The hot water that you think you're in might be worse, or not as bad, depending on the circumstances.

 

[LoneRonin]

thank you all for the help. I will be speaking to our lawyer this week and will let him take it from there. Thanks again.

 

[Brian P]

Once again, Bike Cop, thanks for your input.

 

[CruisnGrrl]

When dealing on the phone assume you are being recorded. Many companies do it automatically

 

[Blackfin]

So what did you and/or they do to warrant one hour and 42 minutes of recorded interaction if you guys were already stopped?

 

[Rob MacLennan]

So what did you and/or they do to warrant one hour and 42 minutes of recorded interaction if you guys were already stopped?

An earlier post advised the OP to be silent on this point and I agree that it's their best course of action.

 

[hedo2002]

Yes best not to reveal anything on a public forum. Posting the details, (if it is a serious situation), could complicate the defense. I only asked the OP if it is a HTA or similar provincial statute, or Criminal Code, so we could advise him a bit better as to how to proceed.

Brian, it depends again, (as you said we really have NO details), how the OP plans to use the recording in court. If the recording forms the substantial basis of the defence then it must be disclosed, so that the crown can "investigate" it's merits, authenticity etc. The disclosure we seek in a trial, (as the defendant), is normally the "expected evidence" if the crown had evidence that you wouldn't expect them to have, (then your lawyer, hopefully if it is serious you have a lawyer), will request "all materials" the crown has. This covers anything you wouldn't normally expect them to have.

If this is for example a simple HTA charge the crown "couldn't be expected to know of the existence of a recording". Therefore the OP, (or his legal team), would be required to advise the crown of it's existence. Just as you would for example if you were issued a ticket for say speeding, at 15:30 hours on 01 Apr 2015, but you had a video taped speech you gave from 15:00 - 16:00 hours on that date, in Montreal, (therefore, you couldn't have been in Toronto at 15:30). You would advise the crown of the existence of that recording so that, (if they choose), they could verify the recording. At that point the crown would be likely to simply withdraw the charge. When we ask for disclosure, it is "presumed" that the crown has evidence, Radar calibration, officer notes etc. In this incident the crown can't "presume" the OP has evidence, (other than their normal verbal version of the incident.

In the end the OP has said his lawyer will deal with it, (which is the best route), I am simply trying to assist him, by advising that "just showing up at trial" and saying while on the stand, "your honor I want to play this recording taken at the time of the incident" would likely result in it being ruled inadmissible.

Op hopefully the recording is as strong as you believe it is, BUT it will be looked at from a "legal perspective" which in many cases doesn't seem to follow logic...lol Good luck with your case.

 

[hedo2002]

Some have advised that to be admitted only one person has to be aware of the recording being done. In MOST cases this is true. But as with most laws there are exceptions. The largest exception being if the party who was being recorded had a "reasonable expectation of privacy" IE your in your therapist office during a session. There would be an "expectation of privacy" therefore, If they wanted to record the session the therapist, would have to advise you in advance that the session was being recorded. Same with say Lawyers, clergy, etc.

This is also why many companies that regularly record calls will say in their message this call may be recorded for "training and/or security purposes" Then you have "no reasonable expectation of privacy" This is also why many security cameras say in a store record ONLY video and no audio.

 

[griff2]

Some have advised that to be admitted only one person has to be aware of the recording being done.

Not to be "admitted" but to be "legal" only one person has to be aware that the recording is being done. Admissibility as evidence is a far different thing than whether or not it is legal to record or video a conversation.

 

[Rob MacLennan]

Yes best not to reveal anything on a public forum. Posting the details, (if it is a serious situation), could complicate the defense. I only asked the OP if it is a HTA or similar provincial statute, or Criminal Code, so we could advise him a bit better as to how to proceed.

Brian, it depends again, (as you said we really have NO details), how the OP plans to use the recording in court. If the recording forms the substantial basis of the defence then it must be disclosed, so that the crown can "investigate" it's merits, authenticity etc. The disclosure we seek in a trial, (as the defendant), is normally the "expected evidence" if the crown had evidence that you wouldn't expect them to have, (then your lawyer, hopefully if it is serious you have a lawyer), will request "all materials" the crown has. This covers anything you wouldn't normally expect them to have.

If this is for example a simple HTA charge the crown "couldn't be expected to know of the existence of a recording". Therefore the OP, (or his legal team), would be required to advise the crown of it's existence. Just as you would for example if you were issued a ticket for say speeding, at 15:30 hours on 01 Apr 2015, but you had a video taped speech you gave from 15:00 - 16:00 hours on that date, in Montreal, (therefore, you couldn't have been in Toronto at 15:30). You would advise the crown of the existence of that recording so that, (if they choose), they could verify the recording. At that point the crown would be likely to simply withdraw the charge. When we ask for disclosure, it is "presumed" that the crown has evidence, Radar calibration, officer notes etc. In this incident the crown can't "presume" the OP has evidence, (other than their normal verbal version of the incident.

In the end the OP has said his lawyer will deal with it, (which is the best route), I am simply trying to assist him, by advising that "just showing up at trial" and saying while on the stand, "your honor I want to play this recording taken at the time of the incident" would likely result in it being ruled inadmissible.

Op hopefully the recording is as strong as you believe it is, BUT it will be looked at from a "legal perspective" which in many cases doesn't seem to follow logic...lol Good luck with your case.

It's also quite possible that presenting that sort of evidence could result in the whole issue being thrown out, before it ever makes it to court, thereby saving time, aggravation, and quite likely money for the accused. For example if the recording is of an officer saying something like, "I know that you didn't do it but I hate motorcycle riders, so I'm going to nail you to the wall anyway" the odds are heavily in favour of the case being tossed.

 

[Kedo]

It's also quite possible that presenting that sort of evidence could result in the whole issue being thrown out, before it ever makes it to court, thereby saving time, aggravation, and quite likely money for the accused. For example if the recording is of an officer saying something like, "I know that you didn't do it but I hate motorcycle riders, so I'm going to nail you to the wall anyway" the odds are heavily in favour of the case being tossed.

That is what I was thinking. On one hand you don't want to show all your cards, but if it will make em Fold before trial and save money then disclose it.
Kinda makes sense to me.
If the prosecution will look a fool or have little chance of conviction with evidence to support the charge I suspect it may withdrawn or over before it begins.
Again hard to really know without all the facts but legal counsel will decide.....thats why they get the big bucks

 

[hedo2002]

I agree, but that would be done at meeting with crown not after the trial has been started. If the recording is that damaging then the crown would in all likelihood withdraw the charges rather than risk the recording being admitted. That would require turning a copy of the recording over to the crown, (which would be disclosure).

But in reality it will be up to the OPs legal rep to determine the "value" of the recording. If it is indeed as damaging as the example you gave then they would be foolish not to present it to the crown.

It's also quite possible that presenting that sort of evidence could result in the whole issue being thrown out, before it ever makes it to court, thereby saving time, aggravation, and quite likely money for the accused. For example if the recording is of an officer saying something like, "I know that you didn't do it but I hate motorcycle riders, so I'm going to nail you to the wall anyway" the odds are heavily in favour of the case being tossed.

 

[Rob MacLennan]

I agree, but that would be done at meeting with crown not after the trial has been started. If the recording is that damaging then the crown would in all likelihood withdraw the charges rather than risk the recording being admitted. That would require turning a copy of the recording over to the crown, (which would be disclosure).

But in reality it will be up to the OPs legal rep to determine the "value" of the recording. If it is indeed as damaging as the example you gave then they would be foolish not to present it to the crown.

My point exactly. The possibility of embarrassment, before a judge, is powerful leverage.

 

[suprPHREAK]

If you want to present the recording as evidence to the contrary, but not an alibi, there is no disclosure obligation.

Correct. You are not obligated to disclose evidence in your defense to the Crown. They have already made their case and laid the charge against you based on the evidence they have. You may now answer to this charge with your defense, and the court will judge based on a balance of probabilities (in the case of traffic/civil), or beyond reasonable doubt (criminal).

To note: HTA charges are "absolute" offenses. You are not "innocent until proven guilty". The evidence for the charge should be clear (officer clocked you at 50 over with LIDAR), and now you are under obligation to prove otherwise (Video shows GPS where I am at speed limit). Failure to request a hearing in time, or paying the fine is an admission of guilt. You do have the right to face your accuser and to review the evidence against you, but the burden of proof is on YOU to prove the evidence is wrong.