Voice of the Investigator

Privacy and Canadian Investigations

Privacy is an issue that is becoming front and center in many different areas not least of which is private investigations.  Although there are certain lengths that investigators can legally go to collect information on individuals, it should be noted that conduct and method is governed not only by privacy legislation, but the Criminal code of Canada as well.

Section 7 of PIPEDA gives specific guidelines as to when an organization may collect personal information without the knowledge or consent of the individual. Section 7(b) is the section that provides the most relevance to a basic private investigation.

Section 7

(a) the collection is clearly in the interests of the individual and consent cannot be obtained in a timely way;

(b) it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province;

(c) the collection is solely for journalistic, artistic or literary purposes;

(d) the information is publicly available and is specified by the regulations; or

(e) the collection is made for the purpose of making a disclosure

(i) under subparagraph (3)(c.1)(i) or (d)(ii), or

(ii) that is required by law.

The Criminal Code of Canada applies to everyone, no matter what the reason the information is being collected. The Criminal Code has certain provisions that can be used to prosecute individualsfor deceit and fraud.

Section (s-380) of the Criminal code reads:

Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence and liable to a term of imprisonment not exceeding fourteen years, where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars; or

(b) is guilty (i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or (ii) of an offence punishable on summary conviction,where the value of the subject-matter of the offence does not exceed five thousand dollars.

The Criminal Code also contains a section dealing specifically with impersonation. Section 403 reads:

Everyone who fraudulently personates any person, living or dead,

(a) with intent to gain advantage for himself or another person,

(b) with intent to obtain any property or an interest in any property, or

(c) with intent to cause disadvantage to the person whom he personates or another person,is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction.

Great points for investigators to keep in mind during investigations that may require the need for discreet collection of information for various investigative scenarios.Knowing privacy laws, and your obligations and responsibilities is important. Privacy laws protect individuals, but are not intended to stand in the way of justice.