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The legality and morality of covert phone-call-recording

So it was the tape that broke Justin Trudeau’s back?

Speaking before a packed room of supporters, shortly after expelling Jody Wilson-Raybould and Jane Philpott from the Liberal caucus, Justin Trudeau explained that the “trust that previously existed between these two individuals and our team has been broken, whether it’s taping conversations without consent, or repeatedly expressing a lack of confidence in our government and in me personally as leader, it’s become clear that Ms. Wilson-Raybould and Dr. Philpott can no longer remain part of our Liberal team.”

Trudeau went on to say that a politician recording conversations is wrong and that Wilson-Raybould recording her conversation with the Clerk of the Privy Council Michael Wernick was “unconscionable”.

And then there was a rush by many lawyers to agree that Wilson-Raybould crossed an ethical line and displayed a serious lack of judgement. There were even a threats to report her to the Law Society of Ontario.

But was it wrong for Wilson-Raybould to record her conversation with Wernick?

Let’s start with the low hanging fruit. The recording was not illegal. There is no law that prohibits taping a conversation that you are a part of.

There are special rules for lawyers. The Law Society of Ontario rules prohibit the recording of a conversation between a lawyer and their client or another legal practitioner. But Wernick was not Wilson-Raybould’s client and he is not a lawyer. So best of luck with that, law society complainant.  

Just because there is not a law prohibiting an act does not make that act right or moral. Criminality should not and cannot represent the line of propriety in politics. A defence that no law was broken is usually the last line of defence for the morally bankrupt.

So the real question is if Wilson-Raybould’s actions were moral? Was taping the conversation the right thing to do?

Like most things in life, context matters. Wilson-Raybould herself recognizes that taping Wernick was an “extraordinary” step that in normal circumstances would be inappropriate. This insight shows that she was not acting in a cavalier or precipitous fashion.

But more importantly, Wilson-Raybould was indeed facing extraordinary circumstances.

Recall that after telling the prime minister that she would not exercise her independent authority and take the unprecedented step of overruling the independent prosecutors in the SNC case Wilson-Raybould was repeatedly pressed to change her mind.

It was not only made clear to Wilson-Raybould that the PMO wanted her to reverse her decision but that desire was linked to political considerations.

After all, there was an election approaching and according to Trudeau’s senior advisor Mathieu Bouchard the PMO could have the best policies in the world but they needed to get re-elected.

The pressure, which the government does not even bother denying anymore, was constant. It came from the prime minister’s office, the finance minister’s office, and from the clerk of the privy council himself – Michael Wernick. They all were delivering a clear message from Justin Trudeau – over and over again.

It is in this context, after months of pressure and after she had made the decision that was hers alone to make, that Wilson-Raybould recorded her conversation with Wernick. A call she expected. A conversation that she knew may be important. And communication initiated by Wernick when Wilson-Raybould was away from her office and alone.

In this context just how was recording the conversation wrong?

In her testimony before the Justice and Human Rights committee Wilson-Raybould detailed the conversation. She said that Wernick told her that he had met with Trudeau and wanted to pass on where the prime minister was at. He said the Trudeau wanted to use every tool to remedy the situation and wanted to know why the remediation agreement was not being used. Wernick told Wilson-Raybould that Trudeau would “find a way to get it done, one way or another… he is in that kind of mood.”

Wilson-Raybould told the committee that she again asserted her independence but Wernick, on behalf of the prime minster, pressed on. He said the prime minister was firm and warned of a “collision.”

Following Wilson-Raybould testimony the justice committee recalled Wernick to clarify his evidence. He testified, albeit not under oath, that he did not have an independent recollection of the conversation and Wilson-Raybould’s description of the call was “not my recollection of the conversation.”

Wilson-Raybould did not release the tape until Wernick conveniently encountered memory problems.

So, thank goodness that Wilson-Raybould did take the unprecedented step of making the recording or we still might be debating if this conversation happened at all.

Ask any lawyer – we all have a story about a tape, video or private communication that vindicated our client or proved the opposing party to be a liar. In those cases, there are not lawyers complaining about impropriety or threatening to make frivolous and foolish law society complaints. So why now?

The Wernick tape provided Trudeau and those who want to carry water on his behalf an easy out. The tape is a convenient way to avoid taking a principled approach to the SNC affair. It is a short-sighted way to move the conversation away from the real issue – the actions of the prime minister and the government.

Maybe you’re a blind partisan. Maybe you have a fear that the SNC scandal could lead to a Conservative government. Or maybe you are cool with an erosion of the rule of law. In that case the recording is easy cover for your intellectual dishonesty.

The Wernick tape may provide an easy out for those defending the government but that does not change the fact Wilson-Raybould acted perfectly appropriately when she recorded it. 

  • maybe an illegal recording, but still evidence!

    Paul Taylor
    FINALLY! someone who speaks with common sense! people sometimes fear retaliation and should have a right to protect themselves, especially in employment situations. Often because it is wrong for lawyers to do it, I find they consider it to be illegal, when it is not. Well as Mr. Spratt so correctly put, unless it is there client. I myself, have run into a similar issue where a recoding was made of a tribunal hearing and caught the panel members in caucus. Initially you will be anger and disgusted with me, but hopefully not so much once you hear all the facts. First, I am an injured worker who suffers from numerous disabilities including difficulty taking notes with my hands. I had used an audio recorder for notetaking purposes at a WSIAT hearing. I didn't think nothing of it. Considering they too had a recorder sitting on the table. Normally when the panel goes in caucus, they leave the room, but this time they asked me to leave the room and they caucused in the hearing room with two audio recorders present. When I later listened to my recording, I was surprised to find I had recorded the panel in caucus. Now here is the fun part. This is when I get called a two-bit criminal! In the recording I thought nothing of it until I heard them mocking me, saying I was faking as, all injured workers are faking, saying I was a F##$$king Joke and I deserved to have my ass kicked for not working supporting my family. Once I listened to all their comments, I completely understood why they denied my appeal, as initially their decision made no sense. Well, this isn't the end of the story.... I then brought a civil action in court against the Tribunal. Needless to say, my action was dismissed. Interestingly the counsel for the Tribunal claimed I committed a criminal act. Remember I had recorded a hearing I was party to, which is legal under the criminal code. Moreover, this was civil court, lawyers to my understanding, are not supposed to threaten criminal action in civil court, according to the Law society rules. Well at any rate, the Judge agreed and dismissed my claim, but refused to seal the record. So, the recording is public record. I then appealed to the Court of Appeal. There I argued that there was a case of Behrens v. Stoodley, 1999 CanLII 1626 (ON CA) where a father had recorded a conversation between the child and the mother, which he was not party to any of the conversation. In that case the court allowed the recording to be admitted as evidence. The reason was that the mother spoke with venomous and viciousness towards the father. The court in admitting the evidence was acting in the best interest of the child. In that case the end did justifies the means. Ironically, in my case the court saw the opposite. What I believe was a main factor was that it was, as Mr. Spratt says the lawyer can’t record so they consider it an illegal issue. My argument was the recording was not illegal, as I was using a disability aid, which is allowed by the Tribunal policy, which is like the Ontario’s Superior Court’s procedures. I was party to the hearing; I am heard all over the recording. Moreover, here is the best part, how could they expect to caucus in a room with their own recorder. They as some say had no reasonable expectation of privacy and freely chose to caucus there. Well the matter is going to the Supreme Court of Canada, as soon as I get my application finished. Oh, by the way, I am self-represented and that is one main reason why I have the losses I have. It is also my argument to the SCC. Rest assured that is NOT the only issue I am appealing on. The second is the Court of Appeal has declared that a court of inherent jurisdiction lacks jurisdiction over the Tribunal. Humm sounds like rule of law to me 😊! The matter I was discussing at the Court of Appeal is: Taylor v. Workplace Safety & Insurance Board, 2018 ONCA 108