Jody Wilson-Raybould Recording: Was It Legal to Secretly Record the Call?

Jody Wilson-Raybould’s decision to secretly record a phone conversation with Michael Wernick became one of the most controversial moments of the SNC-Lavalin affair.

The recording raised two separate questions: Was Wilson-Raybould legally allowed to record the call, and was it appropriate for her to do so?

Employment lawyers from Samfiru Tumarkin LLP discussed those questions in interviews with CBC News, CTV News Ottawa, 570 News and Global News Radio 640 Toronto.

On This Page:

1. What Jody Wilson-Raybould recorded
2. Was the recording legal?
3. Legal versus ethical concerns
4. What our lawyers told the media
5. What employees should know

What Did Jody Wilson-Raybould Record?

On December 19, 2018, Jody Wilson-Raybould recorded a phone conversation with Michael Wernick, who was then the Clerk of the Privy Council.

Wilson-Raybould was serving as Canada’s Minister of Justice and Attorney General at the time. The call concerned whether SNC-Lavalin should be invited to negotiate a remediation agreement instead of continuing to face criminal prosecution.

Wilson-Raybould alleged that she had faced inappropriate political pressure to intervene in the prosecution. During the recorded conversation, she warned Wernick that further pressure could interfere with prosecutorial independence.

The recording was submitted to the House of Commons Standing Committee on Justice and Human Rights as part of additional written evidence. It was publicly released on March 29, 2019.

Wilson-Raybould acknowledged that secretly recording the call was an extraordinary step. She said she believed it was necessary because of the seriousness of the conversation and the absence of another person who could confirm what was said.

Was Jody Wilson-Raybould’s Recording Legal?

The recording was likely legal under Canada’s one-party consent rule.

Section 184 of the Criminal Code generally prohibits the interception of a private communication. However, an exception applies when the originator or intended recipient of the communication consents to the recording.

In practical terms, this means you can generally record:

• A phone call you are participating in
• An in-person meeting you are attending
• A conversation between you and your boss
• A virtual meeting in which you are a participant

You generally don’t need to tell the other participants that you are recording them.

However, you can’t secretly record a private conversation between other people when you aren’t a participant. For example, leaving a recording device in someone’s office to capture conversations while you are absent could violate the Criminal Code.

Legal Doesn’t Always Mean Ethical or Consequence-Free

The central issue identified by Samfiru Tumarkin LLP’s lawyers was the difference between whether a recording is legal and whether making it is appropriate.

Wilson-Raybould was a lawyer, a federal cabinet minister and Canada’s attorney general when the call occurred. Those roles carried significant duties involving confidentiality, trust and professional judgment.

As a result, the fact that the recording may have been permitted under the Criminal Code didn’t resolve questions about:

• Professional responsibilities between lawyers
• Confidentiality within government
• Trust between senior public officials
• Whether the circumstances justified a secret recording
• How the recording could affect existing working relationships

The same distinction applies in an ordinary workplace. An employee may be legally permitted to record a conversation with a manager but could still violate an employment contract, confidentiality obligation or workplace policy.

What Samfiru Tumarkin LLP Lawyers Told the Media

Three Samfiru Tumarkin LLP employment lawyers contributed to national and local media coverage of the Wilson-Raybould recording.

Lior Samfiru on CBC News

Lior Samfiru, National Co-Managing Partner at Samfiru Tumarkin LLP, spoke with CBC News about the legal and ethical rules surrounding recorded conversations.

His analysis drew an important distinction: Wilson-Raybould may not have violated the Criminal Code because she participated in the call, but that didn’t automatically settle the professional and ethical concerns surrounding her decision.

Read Lior Samfiru’s contribution to the CBC News report

Alex Lucifero on CTV Morning Live Ottawa

Alex Lucifero, a partner at Samfiru Tumarkin LLP, joined CTV Morning Live Ottawa to explain how the issue could play out in an ordinary Canadian workplace.

An employee who participates in a conversation can generally record it without obtaining the other person’s permission. However, that doesn’t mean recording a boss or coworker is always a good idea.

A secret recording could damage the employment relationship, violate company policies or raise concerns about confidentiality and trust.

Watch Alex Lucifero’s interview on CTV Morning Live Ottawa

Lior Samfiru on 570 News

Samfiru also joined Brian Bourke on Kitchener Today to discuss whether it was legal or ethical to record a phone call in the manner Wilson-Raybould did.

The discussion examined Canada’s one-party consent rule and why the purpose and circumstances of a recording matter. A recording made to preserve evidence of serious misconduct could be viewed differently from repeated recordings made for strategic, personal or improper reasons.

Listen to Lior Samfiru’s interview on 570 News

David Vaughan on Global News Radio 640 Toronto

David Vaughan, National Practice Leader at Samfiru Tumarkin LLP, joined Kelly Cutrara on Global News Radio 640 Toronto to discuss the legal implications of Wilson-Raybould’s actions.

The interview addressed the same important distinction: being legally allowed to record a call doesn’t protect a person from professional, reputational or workplace consequences.

Listen to David Vaughan’s interview on 640 Toronto

Can You Secretly Record a Conversation at Work?

In Canada, you can generally record a workplace conversation when you are participating in it. This could include a meeting with your boss, a performance review or a conversation with a coworker.

However, employees should consider the potential consequences before pressing record.

You could be disciplined or fired

An employer may consider secret recordings to be a breach of trust, particularly when an employee records confidential meetings or repeatedly records coworkers without a legitimate reason.

An employer can terminate a non-unionized employee without cause as long as the dismissal isn’t discriminatory and the employee receives proper severance pay.

In more serious cases, an employer may allege that secret recordings provide grounds for a termination for cause. Whether cause exists will depend on factors such as:

• Why the recordings were made
• How many conversations were recorded
• Whether confidential information was captured
• Whether a workplace policy prohibited recording
• The employee’s position and level of responsibility
• Whether the recordings damaged the employment relationship

The threshold for a termination for cause is high. An employer can’t automatically deny severance simply because an employee recorded a conversation.

A legitimate purpose can matter

Context is important. An employee recording an isolated incident of bullying, harassment or discrimination may be treated differently from an employee who secretly records every workplace interaction.

Even when an employee believes a recording is necessary, it is best to speak with an employment lawyer first. Other methods of preserving evidence may be available, including detailed written notes and follow-up emails confirming what was discussed.

Don’t share a recording publicly

Being allowed to create a recording doesn’t necessarily give you the right to publish it, post it online or distribute it throughout the workplace.

A recording may contain personal, confidential or commercially sensitive information. Sharing it could create additional privacy, employment or legal concerns.

If you have already made a recording:

• Keep the original, unedited file
• Don’t post it online
• Don’t threaten to release it
• Don’t alter or selectively edit the audio
• Speak with an employment lawyer before using it

More Resources About Recording Workplace Conversations

For more detailed guidance, review our national and provincial resources:

• Recording conversations at work in Canada
• Recording conversations at work in Ontario
• Recording conversations at work in Alberta
• Recording conversations at work in British Columbia
• Alberta court decision involving secret workplace recordings

Speak With an Employment Lawyer

Secret workplace recordings can involve criminal law, privacy rights, employment policies and potential dismissal. The fact that a recording is legal doesn’t mean it can’t affect your job.

Before recording a boss or coworker, contact Samfiru Tumarkin LLP. Our employment lawyers can explain your options and help you protect your workplace rights.

Contact us today to speak with an employment lawyer.