Privacy law is a relatively new and growing area of law. The more our lives become public on the internet, the more concerned we are about keeping our sensitive information out of the hands of others.
Things get complicated when it comes to family law however. Breaches of privacy law can be admissible in court and relied upon by Judges.
Manitoba has privacy legislation called The Privacy Act. It allows a person to sue someone if they breached their privacy, even if there is no proof of financial damages as a result.
In family law, there are reported cases where one spouse breached the privacy of the other (such as taking and using diary excerpts, stealing a cell phone to copy text messages, making audio or video recordings) and tried to use the evidence in court. Normally this would not be allowed. However, if the evidence is important and will help the Judge decide upon a child's best interests, the Judge may allow the evidence to be used in court.
This reality creates a challenge for lawyers and their clients. If there's a chance the evidence could be admissible and helpful in court, should the client go ahead use evidence gained by breaching their former spouse's privacy? What if the evidence is not admissible and the Judge punishes the privacy breacher with court costs? Can the spouse who had their privacy breached sue the other?
Without being able to predict the future, it can be difficult to know what to say to the client. We cannot advise a client to break the law however if the client has already committed the breach and shows up in our office with it, what do we do?
For this reason, most lawyers will advise their clients NOT to access any evidence in breach of The Privacy Act. Just don't. If the evidence doesn't exist, there are no ethical problems created nor any risk of being sued.
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