Admissibility of Surreptitious Recordings in Court

Our lives are increasingly dominated by technology. We communicate by various channels: emails, social media, text messages, WhatsApp, Snapchat, FaceTime, and so forth. But what happens when a litigant obtains evidence by hacking into an account or secretly filming an event? Can this surreptitiously obtained evidence be used?

Although discouraged, sometimes these recordings can be admitted into evidence. It is up to the trial judge to decide whether to exclude the evidence by weighing its prejudicial value against its probative value. (See Fiorito v. Wiggins, 2015 ONCA 729, at para. 22).

In the recent case Chen v. Huang, 2024 ONSC 1173 , the court reviewed emails that were surreptitiously obtained and granted the respondent (wife) a declaration that her estranged husband committed the tort of intrusion upon seclusion. The husband intercepted a number of emails and private Facebook postings between her and third parties. Referencing the case Jones v Tsige, 108 O.R. (3d) 241, 2012 ONCA 32, Justice Vella stated the elements of the tort of intrusion upon seclusion as follows:

(a) The responding party’s conduct must be intentional, which includes reckless behaviour;

(b) The responding party must have invaded, without lawful justification, the moving party’s private affairs or concerns; and

(c) A reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.

Justice Vella found that the husband’s actions amounted to intrusion upon seclusion. It was based on the nature of the intrusion and not the number of violations of a privacy right. Justice Vella rejected the husband’s argument that his violation did not amount to a breach of privacy because he only accessed her emails and Facebook account a few times. At para 16, “I find that the intrusion by the Husband was significant not only in terms of the number of intrusions but because the purpose of the surreptitious intrusion was to gain an advantage against the Wife in the family law proceedings.”

At para 17, Justice Vella noted that courts should not sanction surreptitiously obtained communications from an adverse spouse. “Absent extraordinary circumstances, [such violation would] be highly offensive and cause distress, humiliation or anguish/mental distress to the privacy holding spouse from the objective perspective of the reasonable person.”

It is a risk to obtain evidence surreptitiously, and such action should not be encouraged.