“In her article, “Surreptitiously Obtained Electronic Evidence in Seven Simple Steps”, (2019) 38 Canadian Family Law Quarterly on page 5, Professor Martha Shaffer writes that, “increasingly, courts have resolved questions about whether to admit surreptitiously obtained evidence in family law cases through the application of their ‘general exclusionary discretion’.” That discretion enables a judge to exclude otherwise admissible evidence on the basis that the probative value of the evidence is outweighed by its prejudicial effects.
This type of analysis is also apparent in other family law cases, including Turk v. Turk, 2015 ONSC 216, (transcripts of surreptitiously recorded interactions not admissible on a motion based on policy reasons strongly discouraging their use in family law litigation and finding that the probative value of the evidence was not compelling); Hameed v. Hameed, 2006 ONCJ 274 (policy considerations were weighed against probative value, compelling reason for admission not shown); Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (probative value outweighed prejudice where recording said to contain threat by a parent to abduct a child).
Building on Professor Rollie Thompson’s statement of three core purposes in modern family law: (1) to assure the best interests of the child; (2) to reduce conflict; and (3) maintain, restructure and encourage family relationships, Professor Shaffer argues that systemic prejudice will always be present in relation to the admission of surreptitiously obtained evidence in family cases, since its admission “undermines the goals and core values of family law” and, “to use language borrowed from the Charter context, the admission of surreptitiously obtained evidence brings the administration of justice into disrepute.” In her article, Professor Shaffer elaborates that:
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- the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future;
- surreptitious recording of third-party professionals gives rise to systemic prejudice from the chilling effect admission may have on professionals involved in family disputes; and
- admitting evidence obtained through deceitful practices sends the wrong message by appearing to reward the behaviour and to condone deceit.
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Professor Shaffer then discusses case specific forms of prejudice that can arise, both in the form of harm to the expediency of the trial or harm to one of the parties, or to a child. She identifies some examples:
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- large volume of surreptitiously obtained material that unnecessarily prolong the case, in and out of court, with added costs to parties;
- infliction of emotional trauma to a parent or child; and
- potential detriment to specific relationships in the family.
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Professor Shaffer’s review of the case law supports her conclusion that the combination of case specific prejudice and negative systemic prejudice results in the need for a higher probative value of surreptitiously obtained evidence for it to offset the prejudicial effects.
So, for example a series of surreptitious recordings in Nalli v. Nalli 2015 ONSC 3921 were admitted because they showed the father actively encouraging a child to reject and act out against the mother. Recordings in AF v. JW, 2013 ONSC 4272 showed the mother on various occasions engaging in significantly destructive and alienating behaviour, and, her denials to the contrary, that she was contravening a court order by continuing to undermine the relationship between father and children. These recordings demonstrated egregious, even shocking, behaviour on the part of the mother in the presence of the children. The court described what she did as “horrible emotional abuse at hands of mother.”
The father also referred to Reddick v. Reddick [1997] O.J. No. 2497 (Gen. Div.) where the court allowed in four tape-recorded telephone conversations made by the father of the mother speaking to the children. The specific content is not set out in the reported decision, and it appears that it may have been inappropriate or insensitive. Reddick is one of the earliest reported decisions on the issue. The ruling was based on the best interests of the children which is not in step with the current principled approach of the law of evidence. The recordings were tendered during the cross examination of the mother at trial. One concludes from this, although it is not addressed in the ruling, that the intended use was impeachment of the mother’s testimony. This issue is one for trial that was not before me on this motion.”