Many politicians have been caught out when a microphone they thought was off — turned out to be on. Lots of court cases turn on video surveillance and audio recordings. Many turn on automatic monitoring — like medical monitoring. Many turn on static video surveillance — like a traffic cam catching the collision, fire, robbery, etc. I have a special interest in this, and a database of a hundred or so cases.

Of course there are deep fake videos, photoshopped pictures, altered audio and video of all kinds. But, absent trickery, usually these are accepted as what the law calls “real evidence”. Real in the sense that it doesn’t rely on a witness’s memory or perception. Real in that the court itself can see it and hear it. It’s considered the “best evidence”. Our technical “rules of evidence” require the court to prefer “best evidence” over inferior evidence, to prefer “real evidence” over testimony.

Now think of when the absence of a recording makes us suspicious: The police interrogation that has a gap just before the “voluntary” confession. The fetal monitor that mysteriously got unplugged just while the baby was going into distress. The audio recording that has a gap right when the critical event is said to have happened. BS, right?

In family law, we often have recordings: One spouse physically assaulting the other (or the kids). A parent verbally abusing the kids. A drunk parent. A spouse threatening the other. The doorbell camera showing the ex-spouse vandalizing the former home. Violating a “no go” order. You’d think judges would accept the best evidence in family cases the same way they do in all those other cases. But, nope, many judges get all cringey when it comes to real evidence in family cases. Here’s Mom saying: “He punched me in the face” or Dad says: “She called our son a worthless loser”. The judge wrings his hands and says: “Oh, goodness, we can’t have such an erosion of trust as one spouse recording the other!” So it’s back to: “he said / she said”. Stupid, huh?

Every once in a while, a judge gets it right. Such a case is CC v. SPR: https://canlii.ca/t/jq066 where Mr. Justice John Gibb-Carsley listened to four audio recordings and decided three should be accepted as evidence of the Mother’s conduct towards the Father and their son. He decided to accept them as evidence, largely because:

the Three Recordings demonstrate that the claimant used aggressive language and tone with the respondent – at least to some degree and at one moment in time. This contradicts her assertion that she was generally a victim of bullying and harassment by the respondent throughout the relationship.

Oops. A liar caught out by the perfect, incorruptible, eternal recording device. No chance to say: “Did not!”

Masha Lokshin: https://westsidefamilylaw.ca/pages/masha-lokshin did a terrific job getting these recordings into evidence. If you need a smart family lawyer in the Fairview / South Granville area, call her.

Clear Legal lawyers have been giving clear guidance and clear options to clients since 1990. Part of being clear is knowing when other lawyers do good work.