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Evidence - Phone Records. R. v. L.T. [recording of phone call disclosed by one party to it]
In R. v. L.T. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "convictions for two counts of sexual assault and one count of assault with choking, contrary to ss. 271 and 267(c) of the Criminal Code".
The court considers a Charter s.8 ['search and seizure'], here regarding the criminal evidentiary use of a party-recording of a phone conversation:[64] As a result of the appellant’s concession that the police could receive the recordings without infringing his s. 8 rights, the following issue must be decided to resolve this appeal: Did the appellant have a reasonable expectation of privacy in the recordings the complainant secretly, but lawfully, made of their conversations, in circumstances where she voluntarily provided the recordings to police? If the appellant had a reasonable expectation of privacy, the court would also be called upon to decide whether the police receipt of, and decision to listen to, the recordings infringed the appellant’s s. 8 Charter rights in circumstances where the complainant volunteered the recordings, or whether it was a reasonable search applying the analysis from R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 277-78. However, as I conclude that the trial judge made no error in finding that the appellant did not have a reasonable expectation of privacy in the recorded conversations, it is not necessary to address the latter questions.
c. Whether s. 8 of the Charter is “engaged” turns on whether the appellant has a reasonable expectation of privacy in the subject matter of the search
[65] Before engaging in depth in the assessment of whether the appellant had a reasonable expectation of privacy in the two recordings, I address two preliminary issues.
[66] First, the Crown argues that s. 8 of the Charter is “not engaged” by the complainant voluntarily providing the recordings to the police. The Crown argues this as a distinct issue from whether the appellant has a reasonable expectation of privacy in the recordings. In making this argument, the Crown relies on the frequently cited dicta of Doherty J.A. in R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 34 (as well as on several trial level decisions):I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police. [67] Respectfully, the decisions of the Supreme Court and this court do not support the Crown’s position that there is a distinction between s. 8 being “engaged” and whether a Charter claimant has a reasonable expectation of privacy in the subject matter of a search. The Supreme Court has clearly stated that the threshold question in a s. 8 analysis is whether the claimant has a “reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 34; R. v. Campbell, 2024 SCC 42, 442 C.C.C. (3d) 275, at para. 39; R. v. Bykovets, 2024 SCC 6, 433 C.C.C. (3d) 423, at para. 31; R. v. Lambert, 2023 ONCA 689, 169 O.R. (3d) 81, at paras. 54-56, 65-74, and 77.
[68] If the claimant has a reasonable expectation of privacy in the subject matter of the search, then police action in relation to the subject matter of the search engages s. 8, and the next step is the application of Collins factors – whether the search was lawfully conducted, whether the law authorizing it is reasonable, and whether the manner of search was reasonable. If the claimant does not have a reasonable expectation of privacy in the subject matter of the search, then s. 8 is not engaged.
[69] There is no other test for when s. 8 is engaged than whether the claimant has a reasonable expectation of privacy in the subject matter of the search or seizure. I do not read Orlandis-Habsburgo as suggesting otherwise. As I explain in the analysis below, the concern raised in Orlandis-Habsburgo regarding how the information came into the hands of police is a factor to be considered under the last branch of the reasonable expectation of privacy analysis – whether the subjective expectation of privacy is objectively reasonable.
d. The Scope of Duarte and Wong
[70] The second preliminary issue I address is the scope of the Supreme Court’s decisions in Duarte and Wong. I do so because, based on Duarte and Wong, the appellant places significant weight in his s. 8 argument on the fact that the conversations at issue were recorded.
[71] In my view, while the fact that the conversations were recorded is relevant to the s. 8 reasonable expectation of privacy analysis in this appeal, a review of the decisions in Duarte and Wong shows that the appellant’s submissions seek to extend those decisions beyond their intended scope.
[72] I focus in particular on Duarte because it involved audio recorded conversations. Wong extended the principles from Duarte to video surveillance.
[73] Duarte involved an investigation into drug trafficking. The investigating police forces rented an apartment which was occupied by a police informer who was working with an undercover officer. The apartment was equipped with audio-visual recording equipment installed in a wall. Prior to the installation of the recording equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to then s. 178.11(2)(a) of the Criminal Code. The accused and others attended at the apartment and discussed a cocaine transaction with the informer and the undercover officer. The conversation was recorded. At his trial, the accused challenged the admissibility of the recordings, pursuant to s. 8 of the Charter.
[74] LaForest J., writing for 6 of 7 members of the court, held that the warrantless recording of the conversations with participant consent of the informer and the police officer infringed the s. 8 rights to be free from unreasonable search and seizure. LaForest J. rejected the “risk analysis”, which posited that a person who voluntarily confides wrongdoing to another person takes the risk that that person may disclose the conversation and thus cannot have a reasonable expectation of privacy in the conversation or it being recorded. In his view, the risk that the state will make a permanent electronic recording of a conversation is a qualitatively different risk than that a co-conversationalist will disclose the conversation: Duarte, at pp. 41-49, and 54-57.
[75] Two concerns animated the decision in Duarte: (1) allowing permanent electronic recording of private conversations in the sole discretion of the state – by state agents – is not consistent with expectations of privacy in a free and democratic society; and (2) allowing such warrantless recording by state agents based on consent of a police officer or other state agent would undermine the scheme of the wiretap provisions of the Criminal Code, by subverting the requirement of prior judicial authorization.
[76] A few extracts from the reasons of LaForest J. make this point clear:The real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure should be seen as imposing on the police the obligation to see prior judicial authorization before engaging in participant surveillance, or whether the police should be entirely free to determine whether circumstances justify recourse to participant surveillance and, having so determined, be allowed unlimited discretion in defining the scope and duration of participant surveillance. This Court is accordingly called on to decide whether the risk of warrantless surveillance may be imposed on all members of society at the sole discretion of the police. [at p. 42]
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The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. [pp. 43-44]
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If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence. [p. 46]
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In summary, the question whether to regulate participant surveillance cannot logically be made to turn on the expectations of individuals as to whether their interlocutor will betray their confidence. No justification for the arbitrary exercise of state power can be made to rest on the simple fact that persons often prove to be poor judges of whom to trust when divulging confidences or on the fact that the risk of divulgation is a given in the decision to speak to another human being. On the other hand, the question whether we should countenance participant surveillance has everything to do with the need to strike a fair balance between the right of the state to intrude on the private lives of its citizens and the right of those citizens to be left alone. [p. 49] [7] [77] The concern in Duarte about risks to the right to privacy which would result from allowing warrantless electronic surveillance based on participant consent arose from the fact that the participants giving the consent were a police officer and an informer – i.e., two state agents. In other words, the state was giving itself permission to make electronic recordings. Where the state was the participant giving consent to the interception, if a warrant were not required, unlimited and unregulated police electronic surveillance would have been permitted so long as the police could insert an officer or an informer into a conversation.
[78] My point is not that the recording of a conversation by a private individual is irrelevant to the reasonable expectation of privacy analysis. It is rather, that the recording of a conversation by a private individual without any state involvement engages different considerations and may lead to a different outcome of the reasonable expectation of privacy analysis, particularly on the issue of whether a subjective expectation is objectively reasonable.
e. Legal principles applicable to determining if a claimant has a reasonable expectation of privacy
[79] The primary purpose of s. 8 of the Charter is to protect the right of privacy from unjustified state intrusion: Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 160; Campbell, at para. 36. The right to privacy is a foundational value in a free and democratic society: Campbell, at para. 37.
[80] The jurisprudence under s. 8 of the Charter seeks to balance the sometimes competing aims of personal privacy and the public interest, in particular, the public interest in law enforcement: Campbell, at para. 38; Hunter, at pp. 159-60.
[81] Courts effect this balance by assessing whether a claimant has a reasonable expectation of privacy in the subject matter of an alleged search by the state. A claimant seeking standing to argue that their rights under s. 8 were infringed must show that they subjectively expected the subject matter of the search would remain private, and that their expectation was objectively reasonable, having regard to the totality of the circumstances. In making this assessment, a court must consider four lines of inquiry: (1) the subject matter of the alleged search; (2) whether the claimant had a direct interest in the subject matter; (3) whether the claimant had a subjective expectation of privacy in the subject matter; and (4) whether the claimant’s subjective expectation of privacy was objectively reasonable (Campbell, at para. 39; Cole, at para. 40; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 18; Bykovets, at para. 31).
[82] The issue raised in this appeal – whether a participant in an electronically preserved conversation has a reasonable expectation of privacy in the conversation in circumstances where the other party to the conversation voluntarily provides it to police when they report allegations of criminal conduct by the claimant – has not been decided by the Supreme Court. Although the court has accepted in different contexts that a claimant may maintain a reasonable expectation of privacy, vis-à-vis the state, in electronically preserved conversations even when those conversations are not in the claimant’s control, the Supreme Court and this court have expressly flagged that circumstances where such conversations are voluntarily provided to police by a complainant in alleging criminal conduct may be subject to different considerations: R. v. Reeves, 2018 SCC 56, [2018], 3 S.C.R. 531, at para. 46; Marakah, at para. 5; Campbell, at para. 40; R. v. P.M., 2025 ONCA 208, 176 O.R. (3d) 193, at paras. 49-57; R. v. Amdurski, 2022 ONSC 1338, at paras. 27-29. At paras 83-134 the court applies this Charter s.8 'reasonable expectation of privacy' law to the case facts, making several additional useful legal points.
. R. v. L.T. [recording of phone call disclosed by one party to it]
In R. v. L.T. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "convictions for two counts of sexual assault and one count of assault with choking, contrary to ss. 271 and 267(c) of the Criminal Code".
The court considers the law governing the criminal evidentiary use of a party-recording of a phone conversation:[5] I also agree with the trial judge’s conclusion that the appellant did not have an objectively reasonable expectation of privacy in the recorded conversations. I accept that the appellant had a direct interest in the recorded conversations and a subjective expectation of privacy in them. However, considering the totality of the circumstances, his expectation of privacy was not objectively reasonable.
[6] Although the circumstances of the recordings support that they would tend to reveal personal information, the complainant was entitled to reveal the conversations to whomever she chose and was under no obligation of confidentiality. The police receipt of, and listening to, the recordings when they were volunteered by the complainant was not an intrusive technique. The appellant had no control over the recordings. The factors that led to a finding of reasonable expectation of privacy in some cases even absent control by the claimant over the information are absent in this case. Although the fact that the complainant recorded the conversations without the appellant’s knowledge is a relevant factor in the reasonable expectation of privacy assessment, recording of individual conversations by a private actor, with no police involvement, does not raise the spectre of unfettered state intrusion into and recording of private conversations that animated the decision in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30.
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b. Focusing the issue
[62] It is helpful at the outset to focus the issue. The appellant concedes that, if he had a reasonable expectation of privacy in the recordings, the police receipt of the recordings did not infringe s. 8 of the Charter. He accepts that police receipt of the recordings was a reasonable and lawfully authorized seizure either under s. 489(2) or at common law, to preserve the evidence. The appellant contends, however, that the police were required to obtain judicial authorization before they listened to the recordings.
[63] It is also not in dispute that the complainant’s secret recording of the conversations with the appellant was lawful: see Criminal Code, s. 184(2)(a). As such, there is no need to consider the potential relevance of unlawfulness in making a recording to the reasonable expectation of privacy analysis.[6] . R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered the admissibility of "phone subscriber information", here in a criminal apppeal:[238] The 226 phone subscriber information was admitted as evidence that the customer who obtained the phone – whoever they were – provided as their name, date of birth, and address, Mr. Ali-Nur’s name, date of birth, and address. The Crown’s position, and the position on which the trial judge instructed the jury, was that this was circumstantial evidence which could be considered with the other evidence at trial to infer that the 226 phone was Mr. Ali-Nur’s. In essence, the chain of inference involved weighing the unlikelihood that someone other than Mr. Ali-Nur would provide Mr. Ali-Nur’s name, date of birth, and address (minus the unit number) at the time of creating the phone account.
[239] The Crown did not rest its case for admissibility on the principled exception to the hearsay rule; rather, it relied on s. 30 of the Canada Evidence Act. Where a statutory or established hearsay exception applies, if the evidence meets the statutory or traditional exception, it is admissible except in “rare” cases: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; R. v. Nurse, 2019 ONCA 260, 374 C.C.C. (3d) 181, at paras. 61, 63 and 89-93. Under s. 30 of the Canada Evidence Act, the threshold for admissibility of the subscriber information was whether the record was made in the ordinary course of business: R. v. Campbell, 2017 ONCA 209, at paras. 7-8; R. v. Chaudry, 2020 ONSC 7215, at para. 33.
[240] I see no error in the trial judge’s conclusion that the 226 subscriber information met the threshold for admissibility under s. 30 of the Canada Evidence Act in that it was made in the ordinary course of business. This conclusion was supported by the evidence on the voir dire. A representative from Freedom Mobile, which acquired Wind Mobile in 2016, testified that the subscriber information record was kept in the usual and ordinary course of business; that the database for Wind records had not changed since Freedom acquired Wind; that Freedom continued to use the same database that Wind used in its operations at the time of the trial; and that the subscriber information record had not changed since Freedom acquired Wind.
[241] The subscriber information was admissible for the proposition that the information in the subscriber record was what was provided by the customer when the pre-paid account for the 226 phone was opened. This is consistent with the purpose of the business records exception to the hearsay rule – that threshold reliability is established by the recipient of the statement’s business duty to record the information accurately. It was part of the staff person at Wind Mobile’s job to receive information from the customer and to record it accurately. The reliability concerns raised by the appellants with respect to the problem of people providing false and unverified information at the time of opening a pre-paid phone account bore on the further issue for the jury – whether to draw the inference that the 226 phone belonged to Mr. Ali-Nur based on the information in the subscriber information matching his name, address and date of birth – but not on the issue of threshold reliability of the phone company’s subscriber records. . R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal cited the Crown's evidentiary approach to admitting phone records:[231] At trial, the Crown sought to admit subscriber information for the 226 phone number as a business record under s.30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, or alternately under the common law business records principles set out in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608. The subscriber information for the 226 phone was the only record retained by Freedom Mobile in relation to that phone. By the time the police sought a production order for the Freedom Mobile records relating to the 226 phone, most of the records had already been purged by Freedom.
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[235] The trial judge admitted the 226 phone subscriber information. He found that appropriate notice had been given by the Crown as required by s. 30(7) of the Canada Evidence Act.[13] He held that the Crown had satisfied threshold reliability required for admission under s. 30 of the Canada Evidence Act – that the record was made in the ordinary course of business. He was satisfied that, because the evidence supported that the subscriber information in the Wind/Freedom Mobile records was made in the ordinary course of business, there was sufficient threshold reliability that the subscriber information correctly reflected the information provided by the subscriber at the time the record was created. The various issues that the appellants raised about the unreliability of subscriber information for burner phones and the phone companies not verifying identification were issues for the jury to weigh in the context of the evidence as a whole as to what inferences they could reasonably draw from the subscriber information.
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