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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
A Review of R. v. L.T., 2026 ONCA 449
This was the central question before the Ontario Court of Appeal in R. v. L.T., 2026 ONCA 449, released on June 19, 2026. The decision addresses the intersection of two significant areas of criminal law: the prosecution of domestic violence and sexual assault offences, and the constitutional limits imposed by section 8 of the Canadian Charter of Rights and Freedoms on police investigative conduct. The Court’s analysis has notable implications for the admissibility of secretly recorded conversations in future criminal proceedings.
01 • BACKGROUND
The appellant and the complainant began a relationship while both were in high school. The complainant subsequently moved into the appellant’s mother’s residence, where she resided alongside the appellant and his mother. The relationship ended in mid-2022; however, the complainant continued to reside at the residence for several additional months.
During the period following the breakdown of the relationship, the complainant began surreptitiously recording certain conversations with the appellant using the voice memo function on her cellphone, at a frequency of approximately once per week, in circumstances where the tone of the interaction had become heated. According to her evidence, her primary purpose in making the recordings was self-protection in the event the appellant became upset. She acknowledged, in cross-examination, that she also recognized at the time that the recordings could later serve as evidence should she make a complaint to police.
The complainant subsequently reported allegations of sexual assault and assault with choking to police. In the course of two separate recorded interviews, she advised investigating officers that she possessed audio recordings in which the appellant made statements relevant to the alleged offences. She thereafter voluntarily uploaded copies of the recordings to an evidence-preservation platform used by the police service. The police did not obtain a warrant prior to receiving the recordings or prior to listening to them, although the investigating officer testified that he had turned his mind to the question of whether judicial authorization was required and had sought legal advice on that issue beforehand.
At trial, the recordings were admitted into evidence, and the appellant was convicted of two counts of sexual assault and one count of assault with choking. He appealed on the basis that the recordings ought to have been excluded under the Charter.
02 • THE GROUNDS OF APPEAL
The appellant advanced two distinct arguments under section 8 of the Charter, which protects against unreasonable search and seizure.
The first argument concerned state agency. Where a private individual’s conduct is sufficiently connected to police direction or involvement, that individual may be treated in law as a state actor, such that the Charter applies to their conduct. The appellant submitted that the complainant ought to be regarded as a state agent at the time she made the recordings, on the basis that her purpose, at least in part, was to gather evidence in anticipation of a future police complaint. On this theory, the act of recording itself constituted an unconstitutional search.
The second argument concerned the police conduct in receiving and reviewing the recordings. The appellant conceded that the police were lawfully entitled to receive the recordings without a warrant, either under section 489(2) of the Criminal Code or at common law, for the purpose of preserving evidence. He submitted, however, that the police were constitutionally required to obtain prior judicial authorization before listening to the recordings, on the basis that he retained a reasonable expectation of privacy in those conversations notwithstanding their disclosure to police.
Writing for a unanimous panel, Copeland J.A. rejected both arguments and dismissed the appeal.
03 • THE STATE AGENCY ISSUE
The governing test, set out by the Supreme Court of Canada in R. v. Broyles, asks whether the impugned exchange would have occurred in the same form and manner but for the involvement of the state. Where an individual has had no contact whatsoever with police prior to the conduct in question, that individual will generally not be found to be a state agent, since the state had no opportunity to influence the conduct at issue.
The Court found that the complainant had no contact with police prior to making the recordings. The trial judge’s finding that the complainant’s primary purpose was self-protection, rather than evidence-gathering, was supported by the record and disclosed no palpable and overriding error. The Court of Appeal further held that, in any event, even had the evidentiary purpose been the complainant’s sole motivation, this would not, without more, render her a state agent. A subjective purpose of assisting a future criminal investigation does not establish state agency in the absence of some causal connection to police involvement or direction. The Court expressly disapproved of certain trial-level decisions that had suggested otherwise, characterizing them as inconsistent with the Supreme Court’s reasoning in R. v. Buhay and Broyles.
04 • THE REASONABLE EXPECTATION OF PRIVACY ISSUE
This issue formed the principal focus of the Court’s reasons.
The appellant relied heavily on R. v. Duarte, in which the Supreme Court held that an individual’s acceptance of the ordinary risk that a conversational partner might later disclose the substance of a conversation does not extend to acceptance of the qualitatively different risk that the state will, at its own discretion, make a permanent electronic recording of that conversation. The rationale underlying Duarte is that unregulated state recording of private communications poses a distinct threat to a free and democratic society, independent of any risk arising from voluntary disclosure by a conversational participant.
The Court accepted the continuing validity of this principle but concluded that it did not extend to the circumstances of this appeal. Duarte concerned the insertion of a state informer or undercover officer into a conversation for the purpose of recording it at the state’s initiative. The present case, by contrast, involved a private individual, acting independently and without any police involvement, who lawfully recorded her own conversations and subsequently elected, on her own initiative, to provide them to police.
Applying the framework articulated by the Supreme Court in R. v. Campbell, the Court addressed the following considerations:
The Court accepted that the conversations had the potential to reveal personal information about the appellant, a factor favouring a finding of reasonable expectation of privacy.
The information was already in the hands of the complainant, who owed the appellant no duty of confidentiality and was entitled to disclose the substance of the conversations to any person, including the police. The Court regarded this as a significant factor weighing against the appellant’s claim.
The Court found the police conduct minimally intrusive. The police had no role in the creation of the recordings and merely received and reviewed material that had been voluntarily provided by a complainant who had already reported the alleged offences.
The appellant exercised no control over the recordings. The Court distinguished a conversation, which by its nature is a joint act in which each participant retains an independent right of disclosure, from a shared device such as a computer or cellphone, in which one party’s files may retain protection despite shared access by another.
On balance, the Court concluded that the risk which materialized — namely, the complainant’s voluntary decision to disclose the substance of the conversations to police — was not qualitatively different from the ordinary risk inherent in any conversation between two people. It was not the species of risk against which Duarte was designed to guard, namely, unconstrained state surveillance conducted at the state’s sole discretion.
05 • THE SECTION 24(2) ANALYSIS
Although not necessary to the disposition of the appeal, the Court addressed, in the alternative, whether the recordings would have been excluded under section 24(2) of the Charter had a breach been found. Applying the framework set out in R. v. Grant, the Court concluded that exclusion would not have been warranted. The seriousness of any breach would have been minimal, given that the governing law was unsettled and the police had sought legal advice in good faith prior to acting. The recordings constituted highly reliable evidence directly bearing on the truth-seeking function of the trial. Society’s interest in adjudication on the merits would, in the Court’s view, have outweighed any infringement of the appellant’s privacy interests.
06 • SIGNIFICANCE OF THE DECISION
R. v. L.T. provides appellate guidance on a recurring evidentiary scenario in domestic violence and sexual assault prosecutions: a complainant who secretly records a conversation with an accused and subsequently provides that recording to police following a report of criminal conduct. The Court’s reasoning establishes that such conduct, without more, does not render the complainant a state agent, and does not impose a warrant requirement on police prior to listening to material voluntarily provided in these circumstances.
The Court was careful to confine its holding to the facts before it. It expressly left open the possibility of a different outcome where a recording was made unlawfully, where the manner of recording approximated continuous or fixed-device surveillance rather than discrete conversations, or where a recording was obtained from a complainant without her consent. The decision should accordingly be understood as a fact-specific application of established principles rather than a categorical rule governing the admissibility of privately made recordings in all circumstances.
This post discusses a publicly available appellate decision involving allegations of sexual assault and domestic violence. The decision is subject to a publication ban under section 486.4 of the Criminal Code protecting the identity of the complainant. Neuberger & Partners LLP, Sex Assault Defence Lawyers Toronto.
