New Brunswick Recording Laws: One-Party Consent Guide

Recording a conversation you are part of is lawful anywhere in New Brunswick. Canada is one-party consent under Criminal Code s. 184(2)(a), and that federal rule applies uniformly across every province and territory. Recording a private communication you are not part of, without the consent of any party, is a federal indictable offence carrying up to five years in prison.

Is it legal to record conversations in New Brunswick?

Yes, with one essential condition: you must be a party to the conversation, or have the consent of at least one party.

The governing law is federal, not provincial. Section 184(1) of the Criminal Code, RSC 1985, c C-46, makes it an indictable offence for any person to knowingly intercept a private communication using any electro-magnetic, acoustic, mechanical or other device. The penalty is up to five years imprisonment on indictment, or a lesser sentence on summary conviction.

Section 184(2)(a) creates the one-party consent exception. Subsection 184(1) does not apply to a person who has the consent to intercept (express or implied) of the originator of the private communication or of the person intended by the originator to receive it. Because you are always the originator of your side of a conversation, you always satisfy this condition when you record your own participation.

Section 183.1 extends the rule to multi-party communications. Where a private communication involves more than two people, the consent of any one participant is sufficient for all purposes under Part VI of the Criminal Code. A group meeting with five participants requires only one person's consent to record lawfully.

This rule is uniform across Canada. New Brunswick has no provincial recording-consent law. There is no stricter two-party or all-party consent requirement in New Brunswick, unlike the patchwork of US state laws. The federal rule governs everywhere in Canada, including every corner of New Brunswick from Fredericton to Moncton to Saint John.

Recording conversations you are a party to

When you are a participant in a conversation (whether face to face, by telephone, by video call, or by any other means) you may record it lawfully without disclosing your intention to the other participants. This applies to personal conversations at home or in a social setting, business meetings where you are an attendee, phone calls you receive or initiate, video conferences you join, and group chats or multi-party calls where at least one party (you) consents.

The only doctrinal question is whether the communication is a "private communication" within the meaning of s. 183 of the Criminal Code, which defines the term as an oral communication or telecommunication made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the intended recipient. If a conversation takes place in a crowded public space where bystanders can clearly overhear, there may be no "private communication" to protect, and s. 184 would not be engaged at all. In practice, this threshold matters less for participants (who have consent) and more for third parties who might attempt to record without consent.

Recording others: the offence and its limits

Recording a private communication that you are not part of, without the consent of any party, is an indictable offence under s. 184(1). The elements are straightforward: a knowing interception, using a device, of a private communication. Consent of at least one party removes the offence; absence of any party's consent does not.

Section 193(1) creates a separate offence for disclosure. Any person who knowingly uses, discloses, reveals the substance of, or discloses the existence of an intercepted private communication (one intercepted without consent) commits an indictable offence punishable by up to two years imprisonment or a summary conviction offence. This means that even if someone else performs the unlawful interception, the person who shares the recording faces criminal exposure.

These provisions apply equally in New Brunswick. There are no provincial modifications, exceptions, or defences beyond those in the Criminal Code itself.

Phone calls

Phone calls are private communications within the meaning of s. 183 of the Criminal Code. The analysis is the same as for any other conversation: if you are a party to the call, you may record it without notice to the other party under s. 184(2)(a). If you are not a party, recording without any party's consent is an offence.

There is no New Brunswick regulation requiring disclosure of call recording in a personal context. Business-context call recording (for example, a customer service centre recording calls for quality assurance) is a commercial activity governed by PIPEDA, which requires organisations to collect only the personal information necessary for identified purposes and to make reasonable efforts to inform individuals of the collection. This is an organisational obligation on the business, not a criminal-law consent requirement affecting the call participant.

Video recording and voyeurism

The Criminal Code one-party consent rule applies to audio interception of private communications. It does not licence all video recording.

Section 162(1) of the Criminal Code creates the voyeurism offence: everyone who surreptitiously observes (including by mechanical or electronic means) or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy commits an offence. The three prohibited circumstances are: (a) a private space where nudity or sexual exposure is reasonably expected, such as a changing room, bathroom, or bedroom; (b) where the person is actually nude or exposing themselves and the recording is made to capture that state; (c) where the observation or recording is made for a sexual purpose regardless of location. The penalty is up to five years imprisonment on indictment or a lesser sentence on summary conviction.

In a public space where there is no reasonable expectation of privacy (a street, a park, a public beach) incidental video recording of people is generally not a Criminal Code offence. No New Brunswick provincial statute restricts public photography or video recording beyond the federal criminal limit.

Recording police officers or public officials performing their duties in a publicly accessible space is generally lawful. There is no Criminal Code provision that prohibits filming police. The right to record derives from the freedom-of-expression guarantee in s. 2(b) of the Canadian Charter of Rights and Freedoms, which encompasses gathering information about matters of public concern. The one criminal limit is s. 129, which prohibits wilfully obstructing or resisting a peace officer in the execution of their duty. A person recording from a safe distance and not interfering with the officers' actions does not commit any offence.

Workplace and surreptitious recording

Recording a workplace conversation you participate in is lawful under s. 184(2)(a) in New Brunswick, as everywhere in Canada. An employee may lawfully record a meeting with a manager, a disciplinary hearing, or a conversation with a colleague if they are a participant.

Criminal lawfulness does not, however, protect an employee from employment consequences. Canadian courts and labour arbitrators have upheld dismissal for cause in cases where covert workplace recording was found to be disproportionate, a breach of the duty of fidelity, or fundamentally incompatible with the employment relationship, even when the recording itself was technically lawful under the Criminal Code. Whether recording is prudent in a workplace context depends on the specific circumstances, the employment relationship, and whether the recording is genuinely necessary for a legitimate purpose such as documenting harassment or unsafe conditions.

Employers in New Brunswick who deploy recording systems (such as CCTV, call recording for customer service, or monitoring of electronic communications) must comply with PIPEDA. PIPEDA requires that personal information be collected only for identified and legitimate purposes, that individuals be informed in most circumstances, and that the information be protected and retained only as long as necessary.

New Brunswick privacy law: PIPEDA governs

New Brunswick does not have a general private-sector privacy act. Three Canadian provinces (British Columbia, Alberta, and Quebec) have enacted private-sector privacy laws that the federal government has declared "substantially similar" to PIPEDA, meaning those provincial laws displace PIPEDA for intra-provincial commercial activity. New Brunswick is not among them.

New Brunswick does have a narrow health-specific statute: the Personal Health Information Privacy and Access Act, SNB 2009, c P-7.05, which governs personal health information held by health custodians in the province and is considered substantially similar to PIPEDA for that specific category of information. Outside health information, PIPEDA applies in full to private-sector organisations in New Brunswick that collect, use, or disclose personal information in the course of commercial activity.

PIPEDA is enforced by the Office of the Privacy Commissioner of Canada. Under PIPEDA, organisations must identify the purposes for collecting personal information before or at the time of collection, obtain consent except in limited circumstances, limit collection to what is necessary, and protect personal information with appropriate safeguards. Individuals have the right to access their own personal information held by an organisation and to challenge its accuracy. Remedies under PIPEDA are primarily through the Privacy Commissioner's complaint process and Federal Court orders; PIPEDA does not itself create a private civil cause of action for damages.

The absence of a general New Brunswick private-sector privacy act means that individuals in New Brunswick dealing with privacy grievances against organisations must rely on PIPEDA's federal complaint mechanism rather than a provincial tribunal.

Civil privacy claims in New Brunswick: a limited landscape

New Brunswick has no statutory civil privacy tort. Four Canadian provinces (British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador) have enacted Privacy Acts creating a tort of violation of privacy that is actionable without proof of damage. Ontario courts have recognised the common-law tort of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32 (CanLII). Quebec provides the broadest individual civil privacy protection through the Civil Code of Quebec, arts 35 to 41, and the Quebec Charter of Human Rights and Freedoms, s 5.

New Brunswick has none of these. A New Brunswick plaintiff seeking damages for a privacy violation by an individual (rather than an organisation) must attempt to advance a common-law claim. The available avenues are narrow. A plaintiff may argue that New Brunswick courts should adopt the tort of intrusion upon seclusion from Jones v. Tsige, but no New Brunswick Court of Appeal decision has definitively done so. Nova Scotia, New Brunswick, and Prince Edward Island all share this gap: recovery for individual privacy invasions is uncertain and litigation is costly.

A plaintiff could potentially advance alternative common-law claims such as breach of confidence, misuse of private information, or intentional infliction of nervous shock, but each has its own elements and limitations. Defamation provides a remedy where the recording is used to publish false and harmful statements, but does not address privacy as such.

The practical effect is that in New Brunswick, the strongest deterrents against privacy-invading recording by individuals remain the Criminal Code offences (s. 184 for interception, s. 162 for voyeurism) rather than civil liability.

Intimate images: the NB Intimate Images Unlawful Distribution Act

New Brunswick has enacted the Intimate Images Unlawful Distribution Act (referred to in this article as the NB IIDA) specifically to address the non-consensual distribution of intimate images, sometimes called "revenge porn." This provincial statute creates a civil cause of action separate from the federal Criminal Code s. 162.1 offence.

The federal Criminal Code s. 162.1(1) makes it an indictable offence, punishable by up to five years imprisonment or a summary conviction offence, to knowingly publish, distribute, transmit, sell, make available, or advertise an intimate image of a person knowing that person did not consent, or being reckless as to consent. An "intimate image" is a visual recording where the person is nude or engaged in explicit sexual activity and had a reasonable expectation of privacy at the time of recording and at the time of distribution.

The NB IIDA complements this federal offence by providing a provincial civil remedy. A person depicted in an intimate image that has been distributed without their consent may bring a civil action in New Brunswick's courts under the NB IIDA without needing to establish all the elements of a criminal offence. The provincial civil route allows the victim to seek damages and potentially an order requiring removal of the images, in proceedings where the burden of proof is the civil standard of balance of probabilities rather than the criminal standard of proof beyond a reasonable doubt.

Together, the federal Criminal Code s. 162.1 offence and the NB IIDA give a New Brunswick victim two parallel tracks: a criminal complaint through police and the Crown, and a civil action for compensation through the courts.

Penalties summary

The Criminal Code penalties for recording-related offences in New Brunswick (as in all of Canada) are as follows.

Intercepting a private communication without consent (s. 184(1)): indictable offence punishable by up to five years imprisonment, or summary conviction.

Disclosing an unlawfully intercepted private communication (s. 193(1)): indictable offence punishable by up to two years imprisonment, or summary conviction.

Voyeurism (s. 162(1)): indictable offence punishable by up to five years imprisonment, or summary conviction.

Non-consensual distribution of intimate images (s. 162.1(1)): indictable offence punishable by up to five years imprisonment, or summary conviction.

Obstructing a peace officer (s. 129): summary conviction offence.

On the civil side in New Brunswick, the primary statutory remedy available to individuals is through the NB IIDA for intimate-image cases. PIPEDA complaints against organisations are handled by the Office of the Privacy Commissioner with no fixed damage award but with Federal Court enforcement. Common-law privacy tort claims for other privacy violations remain uncertain without an appellate court decision adopting intrusion upon seclusion in New Brunswick.

Practical tips for recording in New Brunswick

Be a party. The simplest way to ensure you are on the right side of the Criminal Code is to record only conversations you are participating in. As a party, you satisfy the s. 184(2)(a) exception automatically.

Purpose matters in the workplace. Even though recording your own workplace conversations is lawful, make sure you have a genuine reason (documenting harassment, preserving evidence of a safety issue, or protecting yourself in a dispute) rather than general surveillance of colleagues, which can damage trust and employment relationships.

Video requires additional care. The one-party consent rule is an audio-interception rule. For video, the voyeurism provisions apply and carry serious penalties. Never record someone in a private space, in a state of undress, or for a sexual purpose without their consent.

Storing and sharing recordings. Lawfully recording a conversation does not give you unlimited rights to share it. Sharing an unlawfully intercepted recording is a separate Criminal Code offence under s. 193. Even sharing a lawfully made recording could attract civil liability for defamation or, for businesses, PIPEDA obligations regarding retention and disclosure.

Organisations face additional obligations. Businesses, employers, and other organisations operating in New Brunswick must comply with PIPEDA when collecting or using personal information in commercial activity. This includes any call recording, CCTV, or employee monitoring programme. PIPEDA requires notice, consent, purpose limitation, and data safeguards.

Intimate images. Both the federal Criminal Code s. 162.1 and the NB Intimate Images Unlawful Distribution Act apply to the non-consensual distribution of intimate images. Both the recording and the distribution of such images without consent carry serious legal consequences.

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