March 4, 2022 — That question was answered by the Superior Court in Droit de la famille — 2260, 2022 QCCS 136, a decision of January 18, 2022. The fact that the case was a family law dispute influenced the Court's approach. Separating parents were arguing about custody and parenting time for their three-year-old daughter. At the hearing, the mother wanted to produce as evidence two videos of the father with the child, and audio recordings of private conversations with him. The father objected, arguing that these recordings were a violation of his privacy.

Under article 2858 of the Civil Code of Québec [CCQ], evidence will be declared inadmissible if two conditions are met:

  • The element of evidence has been obtained under circumstances where fundamental rights and freedoms were violated. A person's privacy is such a fundamental right and, under article 36 CCQ the following will constitute a violation of that person's privacy: "(2) intentionally intercepting or using his private communications; (3)   appropriating or using his image or voice while he is in private premises".
  • Allowing the evidence to be presented would tend to bring the administration of justice into disrepute.

The Court emphasized that in the analysis, two dominating concepts collide: the protection of a person's fundamental rights and the search for truth. It also added that in family law matters, the interest of the child is a key consideration and that, accordingly, "the right to privacy can take second place to the search for truth in certain disputes, without bringing the administration of justice in disrepute" [para 19; our translation].

The first item of evidence that the Court analyzed were videos made by the mother who, on two occasions, had filmed the father on his riding lawn mower with his daughter on his knees, to demonstrate that he was careless, given the danger to the daughter in the event of a fall. The Court overruled the objection to the production of these videos: although making them was a violation of privacy, as they were captured outdoors on private property, anyone standing nearby could have witnessed the scene. Therefore, the breach had to be put in perspective. The evidence was allowed, considering the issues at stake in this case, in light of the need to examine whether the child's safety may be jeopardized.

The second element of evidence was an audio recording made by the mother, who captured a conversation that she had with the father, questioning him about his use of cannabis. The father objected to this evidence. The Court again overruled his objection since, in civil law, a party is allowed to produce as evidence a recording that she or he made, even if the other party was unaware of the recording. This is not, therefore, a violation of privacy.

The third element was a series of recordings of conversations between the father and certain third parties, made over several days without the father's knowledge, using recording devices placed by the mother under the seat of his car: many of the father's conversations with his friends or his mother were recorded.

This time, the Court maintained the objections, since those elements has been obtained in violation of the father's privacy and in a manner likely to bring the administration of justice into disrepute. The Court analyzed how case law had defined instances where the latter criterion had been applied. Although the goal of producing this evidence was the demonstration of the father's frequent use of cannabis, even considering the daughter's interest, the manner in which the evidence had been obtained rendered it unacceptable: the search for truth at trial was better served without this evidence.

The end does not always justify the means.

Although this decision was rendered in the special context of a family matter where the interest of a child is predominant, several of the rules invoked and reflected in the cases cited can apply in other civil law matters. The case is therefore relevant outside the scope of family law.

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