June 4, 2014

We have been hearing a lot lately about secret audio/video footage – from late night wild rants at the Steak Queen to a pro-life liberal MP chided by a conservative sympathiser into calling Justin Trudeau’s recent stance on abortion a “bozo eruption”.

If you google the words “secret taping”, a list of smart phone products appear, each promising to deliver the tools to enable users to secretly record loose-lipped victims without detection.  Yes, there’s an app for that.

In my litigation practice, lay clients often believe that such surreptitiously obtained evidence is the key to winning in court.  Perhaps the old 1970’s law and order dramas are to blame.  You know the plot line.  Murderer is confronted by clever detective and says, “You are right, detective, I DID murder Walter, but you have no evidence to prove it!”  Out comes the secret tape recorder and the murderer’s face gives way from maniacal glee to the sullen realization that his goose is cooked because the evidence is right there on tape.

Sometimes, even well-intentioned litigants in estate and guardianship disputes believe that secretly recording video or audio tape evidence will allow them to carry the day in court.  In my experience, rarely does this actually pan out as the secret recorder hopes.  A few examples from recent case law suggest that surreptitiously obtained video tape often backfires for the person doing the recording.

Lily Man-Lee Chu v. Kin Kwok Chang was a guardianship dispute among co-guardians of care and property.  One of the co-guardians, Dr. Chu, sought the removal of his co-guardian and filed videotape evidence intended to prove that his grandmother was not being fed.  Justice Brown found that the videotape, surreptitiously filmed outside of the court at 330 University, constituted a breach of s. 136(1)(a) of the Court of Justice Act, which prohibits taking a recording of any person entering or leaving a courtroom for the purpose of a hearing.  As for Dr. Chu’s taped conversation with a caregiver:

“I give no effect to Dr. Chu’s allegations that the respondents were seeking to deprive Mrs. Chang of food she required.  His conversation with [the caregiver] was lengthy, and it was apparent he was trying to badger her into making statements he could use against his uncles and aunts.”

Justice Brown found that the family had not instructed caregivers to deprive Mrs. Chang of food, as alleged by Dr. Chu, but rather had asked caregivers not to spoon feed her, so as to encourage self-feeding.

Similarly, in The Beatrice Watson-Acheson Foundation et al v. Polk et al, Justice Low criticized one of the parties for secretly taping the meetings of the three executors:

“All that having been said, I would observe that Ms. Polk was not alone in pursuing a course of conduct that was likely to create dysfunction and ill-will among the executrixes.  Ms. Deigan started to secretly audiotape her conversations and meetings with Ms. Polk and Ms. Pappin almost from the time of Mr. Watson’s death.  While the taping may not have been illegal per se, it could hardly be seen as ethical and forthright behaviour, and while the tapes supplied corroboration of the affidavit evidence as to what was said by Ms. Polk on various subjects at various times, the clandestine action demonstrates an adversarial attitude that cannot have been conducive to the effective functioning of the executrixes.”

Ms. Deigan obviously believed that the taped evidence was her smoking gun (it appears from the decision to have corroborated her version of events), but, alas, the smoking gun had a nasty kick-back.

Finally, in a recent highly publicized and brilliantly written decision involving feuding rich neighbours in the “leafy corner of paradise” of Forest Hill, Justice Morgan had some rather biting comments about the neighbours’ practice of filming each other (or only pretending to film/record each other):

“Nothing that the Defendants do escapes the Plaintiff’s video camera lens.  The cameras trained on the Defendant’s house may or may not provide the Plaintiffs with a sense of security, but as demonstrated by the dozen or so videos produced in this motion, the Plaintiff’s “security system” is as much a sword as it is a shield.”

So, by taping your neighbours 24/7/365, you may actually unearth incontrovertible evidence that your neighbour did, in fact, place his dog feces in your garbage can, but you will, at the same time, produce inconvertible evidence that you are the type of person who films your neighbour 24/7/365 for the purpose of capturing dog poop caper evidence.  It says as much (or sometimes more) about the taper as the taped.

In my experience, what truly impresses judges in estate and guardianship disputes is a low-tech tool:  conversation.  Proving to the judge that you have made a reasonable attempt to resolve or narrow issues through discussion and compromise is likely going to carry more weight than any secret spy camera recording.

Thanks for reading.