Module Four: Law and the Canadian Legal

System
INTRODUCTION
Professional investigators are governed by Canada’s legal system in the same manner as everyone else. The rights
you have as an individual are the same rights you are expected to observe while conducting investigations for your
client. This module will examine those rights as well as the legal authorities and limitations which apply to you in
your work as a professional investigator. You will study various pieces of legislation which provide guidelines and
limitations under which professional investigators must act.

LEARNING OUTCOMES
1. Describe how the Criminal Code of Canada and the Canadian Charter of Rights and Freedoms
relate to the work of a professional investigator.

2. Identify the legal authorities, rights and limitations of a professional investigator as compared to a
peace/police officer.

3. Discuss and provide examples of a citizen’s power of arrest under the Criminal Code.

4. Identify the differences between civil law and criminal law.

5. Discuss and provide examples of the following:

a. Sections of the Criminal Code which affect surveillance
b. Tort law
c. Burden of proof in criminal court
d. Burden of proof for civil court

6. Describe the consequences when a security professional exceeds his/her authority

a. under the Alberta Security Services and Investigators Act
b. Under the Criminal Code of Canada
c. Civilly

7. Identify and explain additional legislation with respect to security professionals, including:
a. Alberta Human Rights Act and related legislation
b. Privacy Acts
c. Alberta Petty Trespass Act

8. Identify the requirements of an investigator under the Alberta Security Services and Investigators Act.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 1
TOPICS

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS.............................................................................100

THE CHARTER AND THE INVESTIGATOR........................................................................................................104
Alberta Human Rights Act.........................................................................................................................................104
CRIMINAL CODE OF CANADA............................................................................................................................109
POWERS OF ARREST.............................................................................................................................................111
POWERS OF SEARCH.............................................................................................................................................116
CRIMINAL CODE OFFENCES...............................................................................................................................118
CRIMINAL OFFENCES CONTINUED...................................................................................................................127
SURVEILLANCE AND AUDIO RECORDING......................................................................................................130
EVIDENCE ACTS.....................................................................................................................................................133
CONCLUSION..........................................................................................................................................................137
Addendum: Further Information on Criminal Code..................................................................................................139
Addendum: Guidance on Covert Video Surveillance in the Private Sector..............................................................147
REFERENCES AND ADDITIONAL RESOURCES...............................................................................................152

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 2
 Check Your Knowledge
Test your knowledge of the topic before starting this module:

1. Being a professional investigator provides you with additional powers of arrest under the Criminal Code
of Canada.
a. True
b. False

2. Being a licensed investigator allows you to search anyone on the premise of the organization you are
representing.
a. True
b. False

3. If you arrest someone under the Criminal Code of Canada you do not have to worry about the
Canadian Charter of Rights and Freedoms.
a. True
b. False

4. You may arrest an individual that you know previously committed a crime in relation to your
premise.
a. True
b. False

5. You must turn all persons you arrest over to the police as soon as possible.
a. True
b. False

6. If you use excessive force you can be both criminally and civilly responsible.
a. True
b. False

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 3
 As a professional investigator, your goals are different from those of other security professionals. Your job is to
compile and examine evidence as it relates to a client-requested investigation. In a sentence, the job is to
discover the truth in such a way that it can be acted upon. Usually there would be two specific divisions of
activity assigned to an investigator:

1. surveillance, where the prime objective of the investigator is to observe and record observations.

2. general investigations, where the investigator makes inquiries looking for facts, witnesses, and evidence
to assist in the case.

This module will provide the foundation in law that allows the truth to be gathered in such a way that it is
admissible in a court of law. That evidence could be needed for court, and that court could be criminal or civil.
It may be that the evidence gathered has the effect of changing the case in such a way that the other party no
longer wishes to proceed to court; even so the evidence gathered is of little value if it cannot be used as
evidence.

Even if the participant comes to this course with some expertise in the area of investigations, this module will
provide a good review and hopefully expanded expertise.

According to the Security Services and Investigators Act of Alberta, you are an investigator under section
2(1) if you:

for remuneration, investigate, conduct surveillance activities or seek or

obtain information about
a) crimes, offences, contraventions of enactments or misconduct,
or allegations of crimes, offences, contraventions of enactments or
misconduct,
b) The cause of an accident, incident, property damage, personal injury
or damage to premises,
c) The activity, conduct, character or reputation of a person,
d) The location of property, or
e) The whereabouts of a person

© Alberta Queen’s Printer, 2008

In The Canadian Private Investigator’s Professional Guidebook, Christopher Menary (2011) states:

A private investigator is a person who is paid by an individual, agency or corporation to gather facts or
materials that can be used as evidence in the Canadian court system. A private investigator’s primary
function is to research, locate, verify and gather evidence that pertains to an investigation he or she is hired
to conduct.

Unlike other security professionals who are hired to detect or deter crime, the job of the investigator is to
collect evidence. In-depth examination of powers of arrest, search and seizure will not be examined in this
module. The investigator, distinct from other security professionals, relies on a broader scope of law and
documents to be successful in the profession. As an investigator your job will be to examine source documents
to determine what the expectations were and if a breach has occurred.

The investigator’s source documents could be law, statute, contract or policy and will vary from case to case.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 4
 The federal laws to be examined in this module are:
 Canadian Charter of Rights and Freedoms
 Criminal Code of Canada
 Controlled Drugs and Substances Act
 Canada Evidence Act
 Personal Information and Protection of Electronic Documents Act
(PIPEDA)

Once an understanding of the federal law is in place, the module will discuss:
 Personal Information and Privacy Act (PIPA)
 Alberta Evidence Act
 Security Services and Investigators Act (SSIA)

Although the list of acts to be covered is less than comprehensive, it will provide foundational knowledge. The
profession of an investigator is not about knowing but it is about discovering. Knowing everything is an
impossible task; it is of greater advantage to know where to go to get the information. The job of the
investigator is more about the right question than the right answer.

“I don't need to know everything, I just need to know where to find it, when
I need it”
— attributed to Albert Einstein in www.goodreads.com

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 5
THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

The rights and freedoms of all Canadians are set out in the 34 sections which form the Charter. This act and these
rights came into existence in 1982 and provide the foundation of all other legal authority in Canada. The rights
defined in sections 7 through 15 are most important to you as a professional
investigator. In ad ition to these sections, the investigator should be aware of the limitations of the
Charter as listed in section 1 and the consequences of breaching an individual’s rights and freedoms as listed in
section 24.

Group Discussion Activity

In yo r groups, review the following sections of the Charter and:

 interpret what the section means
identify words and phrases that appear vague


Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.

Section 8. Everyone has the right to be secure against unreasonable search or seizure.

Section 9. Everyone has the right not to be arbitrarily detained or imprisoned.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 6
Section 10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be
released if the detention is not lawful.
Note: habeus corpus basically means that all relevant evidence shall be reviewed to determine the legality of the
action in question

Section 11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in respect of the
offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military tribunal, to the
benefit of trial by jury where the maximum punishment for the offence is imprisonment for
five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the time of the act or
omission, it constituted an offence under Canadian or international law or was criminal according
to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and
punished for the offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for the offence has been varied between
the time of commission and the time of sentencing, to the benefit of the lesser punishment

Section 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 7
Section 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so
given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or
for the giving of contradictory evidence.

Section 14. A party or witness in any proceedings who does not understand or speak the language in which the
proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Section 15. (1) Every individual is equal before and under the law and has the right to the equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 8
 Section 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a
manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence
shall be excluded if it is established that, having regard to all the circumstances, the admission of it in
the proceedings would bring the administration of justice into disrepute.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 9
THE CHARTER AND THE INVESTIGATOR

The Charter outlines both your protections and your limitations as a professional investigator.
If the way you collected evidence was found to breach the Charter it is likely your evidence will not be allowed into
court.
You should never confuse your position as a professional investigator with the powers granted to a police or peace
officer as appointed and sworn to enforce the laws of Canada and the provinces. However like
the police or peac officer, your primary focus is to legally discover the truth.
Your job is to disc ver, observe and report, leaving the job of enforcing the law to the police and the
courts.

Class Discussion Activity

Review the Charter sections and determine which, if any, sections might apply in the following case:

An investigator has come across a victim of a robbery. The victim is injured but
points to the suspect who is running away. The investigator has chosen to make a
citizen’s arrest, even though it is against his/her company’s policy. After the
suspect is subdued, the investigator pushes the suspect very hard against the side
of a building and demands to know what he thinks of being violently assaulted.
The suspect suddenly says that he was sorry for trying to rob the victim. This
statement the investigator later gives the police.

Answer:

ALBERTA HUMAN RIGHTS ACT

In this section we will look at issues that affect the workplace and individual attitudes that are protected
areas under human rights law. The Alberta Human Rights Act is built upon principles that are laid out in
the Canadian Charter of Rights and Freedoms. It is natural to follow the Charter section with the details of
human rights as found in the Act. All individuals have biases; as an investigator it is important to
recognize your int rnal biases and treat all people with dignity.
Combined, the Alberta Human Rights Act and the Charter impact investigators in the way they:

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 10
 

The Act outlines five areas where it applies. The five areas are:

1. Statements, publications, notices, and signs

2. Tenancy
3. Employment practices, applications and ads
4. Goods, services and accommodations
5. Membership in trade unions, employers’ organizations, or occupational associations

Of the five areas listed, employment practices and services are likely the two areas to be of concern for the
investigator. As an investigator you are affected by these areas in two ways; your own conduct in dealing with
those that are members of protected groups, and interaction with clients and witnesses whose actions or comments
show they are motivated by prohibited actions.

The Act states:

7(1) No employer shall

a) refuse to employ or refuse to continue to employ any person, or
b) discriminate against any person with regard to employment or any term or
condition of employment, because of the race, religious beliefs, colour, gender,
physical disability, mental disability, age, ancestry, place of origin, marital status,
source of income, family status or sexual orientation of that person or of any other
person.

© Alberta Queen’s Printer, 2009

The terms described in section 7(1) are defined as follows:

 Race: belonging to a group of people related by common heritage

 Religious Beliefs: system of beliefs, worship and conduct (includes native spirituality)
 Colour: colour of a person's skin. This includes, but is not limited to, racial slurs, jokes,
stereotyping, and verbal and physical harassment
 Age: Age is defined in the Act as "18 years or older." Persons who are 18 years or older can make
complaints on the ground of age in all of these areas:
o statements, publications, notices, signs, symbols, emblems or
o other representations that are published, issued or displayed before the public
o employment practices
o employment applications or advertisements
o membership in trade unions, employers' organizations or occupational associations
 Gender: being male, female or transgender. Also included under gender are pregnancy and sexual
harassment
 Physical Disability: any degree of physical disability, deformity, malformation or disfigurement that is
caused by injury, birth defect or illness. This includes, but is not limited to, epilepsy; paralysis;
amputation; lack of physical coordination; visual, hearing and speech impediments; and physical
reliance on a guide dog, wheelchair or other remedial appliance or device
 Mental Disability: any mental disorder, developmental disorder or learning disorder regardless of the
cause or duration of the disorder
Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 11
  Ancestry: belonging to a group of people related by a common heritage
 Place of Origin: place of birth
 Source of Income: source of income is defined in the Act as lawful source of income. The protected
ground of source of income includes any income that attracts a social stigma to its recipients, for
example, social assistance, disability pension, and income supplements for seniors. Income that does
not result in social stigma would not be included in this ground.
 Family Status: being related to another person by blood, marriage or adoption
 Sexual Orientation: This ground includes protection from differential treatment based on a person's
actual or presumed sexual orientation, whether homosexual, heterosexual or bisexual. In addition to the
areas and grounds discussed above, the Act protects Albertans in the area of equal pay. When
employees of any gender (female, male or transgender) perform the same or substantially similar work,
they must be paid at the same rate
 Marital status: the state of being married, single, widowed, divorced, separated, or living with a person
in a conjugal relationship outside marriage

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 12
 Class Discussion Activity

Review the following case and answer the questions below.

You receive a phone call from a person looking to hire an investigator. The person is a
manager in an electronics store. He wants to hire you to investigate employ es which
he believes are conducting a side business while working at the store. Although the
store has an ethnically diverse workforce he is convinced that it is a particular ethnic
group of employees that are the issue. He wants you to focus only on their shifts and
their actions. He is only willing to provide you with employee information for these
employees. When you ask why he suspects them and not others, he replies, “That’s
what their kind do!”

Questions:
What is the problem with this situation? Can
you take this job?
Answer:

The penalties for violating the Alberta Human Rights Act are significant, with fines of up to $10,000
against those that hinder, obstruct or interfere with the Commission investigations. This fine can be
imposed against the organization or an agent of the organizations or both.
In regard to a complaint, the Commission Tribunal has the following authority:

32(1) A human rights tribunal

(b) may, if it finds that a complaint has merit in whole or in

part, order the person against whom the finding was made to do
any or all of the following:

i. to cease the contravention complained of;

ii. to refrain in the future from committing the same or any similar
contravention;
iii. to make available to the person dealt with contrary to this Act the rights,
opportunities or privileges that person was denied contrary to this Act;
iv. to compensate the person dealt with contrary to this Act for all or any
part of any wages or income lost or expenses incurred by reason of the
contravention of this Act;
v. to take any other action the tribunal considers proper to place the
person dealt with contrary to this Act in the position the person would
have been in but for the contravention of this Act.

©Alberta Queen’s Printer, 2010

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 13
 Class Discussion Activity: Discrimination

Review the following case and answer the questions below.

You are a Human Rights Commission investigator. A complaint comes in about a loss
prevention worker at a large drug store. A co-worker has complained that whenever he
works the video monitoring station he seems to follow Black and Asian males more
than others in his observations. He arrests many people for theft and most are Black
and Asian.

Questions:
 Is racial profiling an offence?
 This loss prevention officer is being successful but is he breaking the law?
 If so how would you prove it?

Answers:

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 14
CRIMINAL CODE OF CANADA

The professional investigator has no additional rights to make arrest or search than are granted any other citizen
under the Criminal Code of Canada. You will need to know your legal powers to arrest. Remember your
primary duty as an investigator is to discover what happened in such a way as to provide legal opportunity to take
appropriate action.
The Criminal Code of Canada defines behaviours considered to be criminal. The Code does not cover all
illegal and unlawful acts. Those offences which contravene the Criminal Code of Canada or other federal
statutes are considered crimes. Therefore in order for the offence to be a crime, the law broken must have been
made by Parliament. These are the only offences that a person would receive a criminal record for. The
enforcement of these laws is the primary jurisdiction of the police.

Terminology

The criminal system has its own rules and its own language. These cases are always between the Crown
(Canada, as represented by the Queen), and prosecuted by Crown Counsel (lawyers representing the
government) and the individual charged who becomes the accused or the defendant.

The laws are made federally by Parliament and apply to all citizens of the country. In breaking these laws a
crime is committed. The two main groups of federal law for the investigator to be aware of are the Criminal
Code of Canada and the Controlled Drugs and Substances Act.

The process of being accused of a crime is being charged. When the accused goes to court and the courts find
the person has committed the offence, the person is found guilty. When the courts find the person did not
commit the offence, they are found not guilty.

If the courts authorized the search for a person or for property a warrant is issued. The warrant can be an
arrest warrant for a person or a search warrant for a premise or property. In most cases it is the police and
the Crown Counsel that apply for the warrants.

Criminal Code of Canada investigations have set the standard for investigations. Previous decisions made by
the courts on criminal cases have defined or limited the powers in which the police or professional
investigators operate. These decisions are called case law. There is also a system of guidelines that have
emerged from the decision-making process of the courts. These have been adopted as law but not written into
statutes. They are also called case or common law. Only police and peace officers have special powers
related to the Criminal Code of Canada and federal law; however the laws can be investigated by anyone.

The laws set out in the Criminal Code of Canada and the Controlled Drugs and Substances Act fall into
three categories and into two levels: minor and serious. The minor level of offence is called summary and the
serious is referred to as indictable. There are some offences where the Crown may elect to proceed by way of
indictment or summary conviction rules of evidence, depending on the circumstances of the case. These
offences are sometimes referred to as hybrid or dual offences.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 15
 There are three classifications of offence identified in the Criminal Code:

 Summary conviction
o Considered to be a “less serious offence”
o Punishable by jail time, fine, or both
o Maximum of up to 6 months in jail, or up to $2000 or any combination of the two to the
maximums
o Statute of limitation of six months
o Examples are indecent act, unlawful assembly, causing a disturbance, loitering, trespassing by night,
obtaining food or lodging by fraud

 Indictable Offence
o Offences defined in federal law, where punishments are more serious
o Maximums are set out in each particular offence
o No statute of limitation to lay charges.
o Examples are weapon or imitation dangerous to the public peace, aggravated assault, assault with a
weapon, theft over $5000, robbery, break and enter with the intent to commit an indictable offence,
arson, possession of counterfeit money

 Hybrid (also called dual procedure)

o The charge is the same but the difference is in the options for trial procedures and the penalty
the individual may receive upon conviction
o Examples are possession of a prohibited weapon, public mischief, failure to stop at the scene of
an accident, sexual assault, theft or possession of stolen property under $5000
o For the purposes of arrest these are considered indictable offences with no statute of
limitations.

These distinctions are important to remember as we move into the powers of arrest.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 16
POWERS OF ARREST

As a professional investigator your primary function will be the investigation and collection of factual
information for legal action and proceedings. The arrest and detention of individuals should be a rare exception
to your primary duties. However, it is important to understand the law around arrest.

Arrest is the process of detaining an individual for the purposes of investigating the individual’s possible
involvement in a criminal activity. It is important to realize that an individual who has been arrested still has
rights, and you must be respectful of those rights. Our justice system calls for a presumption of innocence.

Under the Criminal Code of Canada, anyone may arrest a person or persons as follows:

Section 494, Criminal Code

494. (1) Any one may arrest without warrant

a) a person whom he finds committing an indictable offence; or
b) a person who, on reasonable grounds, he believes
i. has committed a criminal offence, and
ii. is escaping from and freshly pursued by persons who have lawful
authority to arrest that person.

(2) The owner or a person in lawful possession of property, or a person authorized

by the owner or by a person in lawful possession of property, may arrest a
person without warrant if they find them committing a criminal offence on or
in relation to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the offence is
committed and they believe on reasonable grounds that it is not feasible in
the circumstances for a peace officer to make the arrest.

(3) Any one other than a peace officer who arrests a person without warrant shall
forthwith deliver the person to a peace officer.

(4) For greater certainty, a person who is authorized to make an arrest under this
section is a person who is authorized by law to do so for the purposes of section
25.

© Government of Canada. Criminal Code of Canada (1985). Reproduced by Federal Reproduction Law Order

Arrest Terminology

“May arrest” --- there is no requirement to arrest; arresting someone under this section is optional and most
investigative firms will have policies that restrict your ability to exercise section 494.

“Finds committing”— to perceive through your senses that a crime is being committed, that is to see, smell, hear
a situation that would leave no doubt that the individual has just committed a crime.
Currently, this term means that investigators cannot deduce the occurrence of a crime for the purposes of an
arrest.

“Indictable Offence”— Not only does it have to be criminal but it also has to be a serious criminal offence that
is listed in the Criminal Code as being an indictable or hybrid offence.

“Reasonable grounds”— defined in the Criminal Code of Canada as a set of facts or circumstances which
would cause an ordinary, cautious and prudent person to believe beyond a mere suspicion.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 17
 “Criminal offence”— defined as any violation of specific federal statutes, including the Criminal Code of
Canada.

“Is escaping and being freshly pursued and is being chased by a person who has lawful authority to arrest”—
this is a very narrow scope. It would apply to a peace/police officer who is chasing someone when it is obvious
that he or she is a peace/police officer and gives indication of an offence (for example, yelling “Stop that person
who robbed a bank!”). There is a legal expectation that the pursuit is being done directly after the crime was
committed.

In all cases the person arrested would have to be turned over to a peace/police officer as soon as possible.

Let’s look at the main factors relating to citizen powers of arrest:

First you must find them committing. To “find someone committing an offence” means you must catch them in
the act. It is not enough to see the start of the criminal act or the end result - you must witness the act itself. If you
witness an individual committing a serious offence, you are within your rights to arrest that person at that
moment. To find committing is more than to see it. It is to perceive through your senses. Sight is only one of
your senses, although it is likely your primary one.

The second main factor is that the offence must be an indictable offence which is a crime of a serious nature,
under the Criminal Code of Canada or other federal legislation such as the Controlled Drugs and
Substances Act.

Lastly, any arrest made under s. 494 requires you to deliver the arrested person to a peace/police officer
forthwith.

Recent changes to s. 494 have significantly altered the abilities of private citizens to make arrests in Canada.
Section 2 has an added subsection that allows citizens who are the owners of the property, in lawful possession
of the property or someone who has been authorized by the lawful owner of the property, to make arrests after
a reasonable time has elapsed between the time when they found the suspect committing the crime and the time
at which the citizen makes the arrest. In the past, the arrest needed to be immediately after the suspect was
found committing a criminal offence.

Another added section (4) clarifies that citizens can use force to effect an arrest as per section 25 of the
Criminal Code, providing they use no more force than is necessary.

Providing you have the grounds to arrest, you then need to be aware of the requirements of arresting someone.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 18
Five Steps to a Lawful Arrest

1. Identify yourself as an investigator

2. Tell the person they are under arrest

3. Take physical control of arrested subject

4. Tell the person the reason for the arrest

5. Turn over to police/peace officer ASAP

Lawfully arrested individuals are afforded specific rights under the Charter. Specifically, they are entitled to access
to legal counsel and the right to remain silent. Police officers making arrests are required to read “Charter
warnings” to arrested parties. The law is ambiguous about whether private citizens are required to read these same
rights to people they have arrested. Loss prevention workers make private citizen arrests and, even though not
required to, loss prevention companies embrace a best practices approach and have their loss prevention worker
read the Charter warnings to the lawfully arrested person. Any investigator who believes they will be in a position
to arrest anyone might want to consider carrying with them text that provides the suspect their rights under Section
10 (a) and (b) of the Charter of Rights and Freedoms. The position of the Alberta Ministry of Justice and
Solicitor General is to not use the official Charter text and instead advise the suspect that they are under arrest and
why.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 19
 Class Discussion Activity

Read the following case study and discuss the answers to the questions with others in your group.

You see a person that you do not know walking into your office. You see him act
suspiciously before going through a co-worker’s jacket pocket. You see him remove your
co-worker’s wallet and quickly turn to leave. As you approach the individual, he starts
running away. You chase him and as you are leaving the building you see the corporate
security guard for the building. You yell, “Stop him! He just stole my co- worker’s wallet!”

Identify the:
 Main elements of the offence
 Issues that might arise and how they might be resolved

Answers:

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 20
 Class Discussion Activity

Review the following two case studies and respond to the questions.

If we go back to the last example of the security guard who was able to arrest the suspect that you
were chasing, would this security guard have been able to arrest the person if you were not chasing
them? Let’s say the wallet has been stolen as before. You observed but were not able to catch them,
losing them in a crowd going down the stairs. The security guard is informed that a wallet has been
stolen in the building by a man thirty years old with his hair in a ponytail and a dark jacket. The
security guard sees a male matching this descriptio come into the lobby from inside building. He or
she has the authorization of the building owners to act in relation to events on the property.

Question:
Can the security guard arrest the person?

Answer:

You are working for a company that has a manager suspected of possible misuse of the company credit
card and/or possible fraud in managing his expense accounts. The company Vice President and head of
Human Resources have called you in to look into the allegation. The company is looking to both
possibly discipline the individual as an employee and to turn any evidence over to the police if you
believe that fraud can be proved.

As you embark on your investigation you are given access to the company expense records and credit
card statements. As you investigate you find that the employee in question has been using his
corporate credit card to fuel his personal car, even though he has a company vehicle. You also find
that this subject has a boyfriend that he meets frequently at local business hotel for a believed sexual
liaison. Yesterday you observed the employee buy his personal groceries on his company credit card,
which you are able to prove was a fraudulent purchase.

You relay these findings to the head of Human Resources, who in turn tells the Vice President of
Operations. The VP of Operations contacts you and wants you to sit in on a meeting where this
employee has been called in to Human Resources to explain his actions. The VP states that she wants
you to arrest this person at the end of the meeting.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 21
 Question:
Do you have the power of arrest in this situation? If so, why and if not, why not? Answer:

POWERS OF SEARCH

Powers of search for the Canadian citizen, therefore the investigator, are very limited. They are based on the
Canadian Charter of Rights and Freedoms and common law. These search provisions are usually associated to
arrests made by police or peace officers. Case law has linked some of these search powers to individuals who make
citizen arrests.

Canadian Charter of Rights and Freedoms Section 8:

Everyone has the right to be secure against unreasonable search or seizure.

For the investigator the powers of search break down into two areas: incidental to arrest, and with consent.
However it is generally held that even though a subject is arrested, that does not provide civilians grounds to search
for evidence. This is deemed to be the realm of the peace/police officer. However this is further qualified in that
evidence of the offence the subject was arrested for would be admissible, but evidence of other offences most often
is not. The case most often cited as defining this is
R. v. Lerke, 1986 ABCA 15 (CanLII).

In common law, arrest allows the citizen to search for items that are:
 Weapons or items that could be used as a weapons
 Items or tools which would aid in escape

The Supreme Court of Canada has held that for a search to be reasonable it must be
(a) Authorized by law;
(b) The law itself must be reasonable; and
(c) The manner in which the search was carried out must be reasonable
R. v. S.A.B., 2003 SCC 60 (CanLII)

The questions to consider are as follows:

 Are you treating the person with respect and dignity?
 Can you do this in a place that provides privacy?
 Are you being reasonable in your approach?

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 22
Consent Search

Search with consent is exactly what it implies. The subject has to provide consent. Consent can be gained by
asking the individual if they are willing to be searched or to have something they are carrying searched. Consent
can be provided by an agreed term in a purchase contract. An example would be buying a ticket for a concert or an
airline flight in which you agree to a security search before entering or boarding.

There are two things to remember with consent searches:

Class Discussion Activity

Read and answer the questions in the two case studies.

Case Study 1

A male subject arrested for shoplifting (theft) is carrying a bag or a backpack that may contain items of
concern. Identify the correct answer:
a) Check the bag for weapons, items to aid escape and evidence
b) Check the bag for weapons and items to aid escape
c) Take the bag and set it aside a side, away from the subject, and wait for police Case

Study 2

You are working a paid attendance event for your company. A female whom you know to
vocally disagree with company public policy and has made veiled threats, arrives with a ticket. The
ticket includes consent search as a term of purchase. You ask to search her purse, which she hands to
you. Inside you find a second makeup- type bag. When you take it out to search it she states you can’t
search that. What are you options?

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 23
Answers:

Case Study 1:

Case Study 2:

CRIMINAL CODE OFFENCES

Each criminal offence has important elements that need to be proven in court; however in almost all offences,
two elements are critical: mens rea and actus reus.

Mens Rea

There are two broad categories of intent:

 General intent
 Specific intent

General intent means the person committing the crime actually intended to do something to another as opposed
to having accidentally done so. For example, the suspect punched the victim in the face because the suspect was
angry with the victim. In this case, the victim’s injuries could be a broken nose and black eyes. The same
injuries could occur as two people accidentally bump into each other. In the first case, there was an intention to
do harm but in the second there was not.

Most offences in the Criminal Code of Canada require the Crown to prove general intent. In fact, the intention
of the suspect can often be inferred by the suspect’s action.

Specific intent requires the Crown to prove what the suspect was thinking at the time of the commission of the
offence. Specific intent is often required for very serious offences such as murder, robbery and breaking and
entering. Specific intent can be very difficult to prove, at times, because it is something that cannot be inferred
from the suspect’s actions.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 24
 Following are two descriptions of criminal offences where one requires general intent and the other specific
intent.

Example of General Intent—Assault Example of Specific Intent – Break and Enter

265. (1) A person commits an assault when 348. (1) Every one who
(a) breaks and enters a place with intent to commit an
(a) without the consent of another person, he indictable offence therein,
applies force intentionally to that other
person, directly or indirectly; (b) breaks and enters a place and commits an indictable
offence therein, or
(b) he attempts or threatens, by an act or a
gesture, to apply force to another person, (c) breaks out of a place after
if he has, or causes that other person to (i) committing an indictable offence therein, or
believe on reasonable grounds that he (ii) entering the place with intent to commit an
has, present ability to effect his purpose; indictable offence therein, is guilty
or
(d) if the offence is committed in relation to a dwelling-
(c) while openly wearing or carrying a house, of an indictable offence and liable to
weapon or an imitation thereof, he imprisonment for life, and
accosts or impedes another person or
begs. (e) if the offence is committed in relation to a place other
than a dwelling-house, of an indictable offence and
liable to imprisonment for a term not exceeding ten
years or of an offence punishable on summary
conviction.

© Government of Canada (1985). Criminal Code of Canada. Reproduced by Federal Reproduction Law Order

The concept of “intent” in law is very complicated and many cases are lost in court because Crown is unable to
demonstrate this component of a case.

Mens rea can also include someone who ignores the likely outcomes of an action. An example is the fight
where a person punches another, who falls down hits their head and dies. Another example would be the
impaired driver who kills someone while driving home drunk. There was not a desire to kill the person but a
reasonable person would believe there was a strong probability that death could result from driving while
impaired. In this case, the suspect would be charged with criminal negligence causing death. Canada does not
have the offence of vehicular homicide.

Actus reus

Latin for the “guilty act,” actus reus refers to the specific behaviours or actions that lead to the criminal act
being committed. The action does not have to be the crime in its fulfillment. The thought is not enough without
some action, a call to someone to put a plan into action in this case.

A person may want to harm another (mens rea) but until they have taken steps to actually implement the plan,
there is no crime.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 25
 Group Discussion Activity

In groups, refer to the following offences in the Criminal Code Addendum starting on page 48 and answer the
following questions.

1) Write a short summary as to how the section might apply to an investigator.

2) What actions does the section speak to? Provide other examples.
3) Is general or specific intent required?
4) What is the penalty for breach? Is it an indictable, summary or hybrid offence?
5) What challenges do you see as an investigator dealing with this type of offence?

Section Description
21 Party to offence
130 Personating a peace officer
131 Perjury
136 Contradictory evidence
137 Fabricating evidence
139 Obstructing justice
423(1) Intimidation
342.1 Unauthorized use of a computer

Answers:

Parties to offence

Personating a Peace Officer

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 26
Perjury

Witness giving contradictory evidence

Fabricating evidence

Obstructing justice (focus on 139 (2))

Intimidation

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 27
Unauthorized use of computer

Additional Sections

Offences relating to affidavits

138. Everyone who

(a) signs a writing that purports to be an affidavit or statutory declaration and to have been sworn or declared
before him when the writing was not so sworn or declared or when he knows that he has no authority to
administer the oath or declaration,
(b) uses or offers for use any writing purporting to be an affidavit or statutory declaration that he knows was
not sworn or declared, as the case may be, by the affiant or declarant or before a person authorized in that
behalf, or
(c) signs as affiant or declarant a writing that purports to be an affidavit or statutory declaration and to have
been sworn or declared by him, as the case may be, when the writing was not so sworn or declared,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. R.S.,
c. C-34, s. 126.

Additional Information:

The investigator’s evidence is usually presented in one of two manners: direct evidence in court or sworn
affidavit evidence. Frequently the affidavit evidence is put together by a lawyer based on a written report
provided by an investigator. Often a lawyer, especially in civil court, will take the investigation report and ask
that it be sworn by the investigator to become a court document on which other court actions, like an Anton
Piller order, will be based. If this is the case and the report has areas that have not been fully disclosed, the
investigator needs to clarify these with counsel before swearing something that may be a criminal offence.
Being as honest and complete as possible is the investigator’s best defence against any issues that may arise.
Once the document is sworn, the offence
has been committed.
If a document was truthfully sworn and new information comes to light that contradicts the original
information given, the investigator needs to advise counsel and the courts. The protection is always in the
intent. If there was no intent to deceive there is no mens rea. If however the situation changes and truth is not
disclosed, the hiding of this change will be looked at as intent to deceive.

An example:
You have provided a report to a client which they are very happy with. You have included critical evidence
which came from another investigator as evidence coming from yourself. The client is not aware you have
engaged the assistance of another investigator. The client wants you to swear the report as an information.
What do you do?

Answer: you need to advise the client and include where the information came from. You will likely have to
break the report into two documents. The first is the part you did and will swear to and the second is the part
the other investigator did and will have to swear.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 28
 Offences relating to intercepting communication, specifically sections:
 184(1)
 191(1)
 193.1 (1)

Section 184: Interception

184. (1) Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, willfully
intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.
(2) Subsection (1) does not apply to (a) 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 thereof to receive it;

Section 191: Possession

191. (1) Every one who possesses sells or purchases any electro-magnetic, acoustic, mechanical or other device
or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception
of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding
two years.

193.1 (1) Every person who wilfully uses or discloses a radio-based telephone communication or who wilfully
discloses the existence of such a communication is guilty of an indictable offence and liable to imprisonment
for a term not exceeding two years, if
(a) the originator of the communication or the person intended by the originator of the communication to
receive it was in Canada when the communication was made;
(b) the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other device
without the consent, express or implied, of the originator of the communication or of the person intended by
the originator to receive the communication; and
(c) the person does not have the express or implied consent of the originator of the communication or of the
person intended by the originator to receive the communication.

Additional Information:

Section 184 applies in particular to the surveillance investigator. Unless you are part of the conversation or
have direct consent to record you cannot electronically capture the communications of others including e-mails
and text messages. It also refers to using electronics to amplify sound such as parabolic microphones to
intercept conversations over considerable distance such as across a playground or in a house.

A great risk in surveillance is unexpectedly capturing the communications of others as part of your surveillance.
The best way to avoid this is to disable the audio on any video equipment.
Overhearing conversations without using audio aids is permitted.
The added section refers to the offence of even having equipment that is designed specifically to intercept
communications. Section 193 goes further and speaks to offences relating to disclosing information that has been
captured.
An example:

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 29
 You are doing video surveillance on an insurance policy investigation. The subject is working at two jobs
and has filed an insurance claim with Company ‘A’ as a result of an injury he allegedly suffered while
working there. You decide to conduct surveillance at his second place of work, Company ‘B’.

You are working with a partner and set up outside Company ‘B’s workplace, a plant store where his duties
involve moving rocks and heavy bags of potting soil. The subject has not appeared for work yet. You
decide to go into the centre and take a closer look and see if you could get some audio statements from other
employees. You pretend to be a former customer and ask an employee about this guy you dealt with before
(the target subject) and if he still works there. The employee tells you that he does and is just late, as usual.
The subject shows up while you are talking to the guy. The employee waves him over and tells the guy how
you had seen him before and were impressed by how much he could lift. The subject becomes part of the
conversation and begins to brag about his physical strength.

Question: Can you record this conversation?

Answer:

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 30
 Class Discussion Activity

Elements of Theft Example 1:

Person ‘A’ is invited to a neighbour’s yard and while there takes a power saw that he
believed he had loaned to the neighbour and brings it home. The neighbour calls the
police to report a theft when he sees it is gone. When Person ‘A’ returns home he
finds his own saw is in the garage and goes back to the neighbour’s to return the saw
he mistakenly took. Can he be charged with theft?

Answer:

Elements of Theft Example 2:

An employee works at a company with a strict policy against personal use of company
assets. He is doing a home renovation project and returns to the employer’s premise on
Saturday while the business is closed and borrows a ladder from the yard. He returns
the ladder on Sunday. An investigator, while reviewing the security videos for the
premise, finds the footage where the ladder is removed. On Sunday, the yard is
checked by the investigator and the ladder is back in its place. Did the employee
commit a theft?

Answer:

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 31
 Group Discussion Activity: Whiz Bang Computers
and Electronics

Refer to the Criminal Code Addendum starting on page 48 and review the following sections to determine whether
they might be related to the Whiz Bang Computers and Electronics case:
 s. 322: theft
 s. 354: possession of property obtained by crime
 s. 380: fraud
 s. 366: forgery
 s. 343: robbery

Record your answers and ratio ale, based on what you know to date about the Whiz Bang case.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 32
CRIMINAL OFFENCES CONTINUED

Class Discussion Activity

Refer to the Criminal Code Addendum starting on page 48, specifically the following sections, and answer the
questions listed below.

Section Description
265 Assault
348 Break and Enter
430 Mischief
361 False Pretence

1) Describe the important elements of their offence.

2) Provide a description of any term that is not obvious.
3) Provide an example of an offence on investigator might encounter.
4) State what other offence is it linked to (for example robbery is a theft with violence or weapon.)

Assault

Break and Enter

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 33
Mischief

False Pretence

Additional Legislation

Trespassing and Trespassing Offences

There is only one trespass charge that is criminal and it is trespassing by night. This is a summary
conviction offence and is rarely used. You cannot prowl around a dwelling at night without being in breach
of the Criminal Code.

Trespassing at Night

177. Everyone who, without lawful excuse, the proof of which lies on him, loiters or prowls at
night on the property of another person near a dwelling-house situated on that property is guilty of
an offence punishable on summary conviction.

© Government of Canada (1985). Criminal Code of Canada. Reproduced by Federal Reproduction Law Order

Key elements in this section include:

 “without lawful excuse” – this is often very broadly interpreted by the Courts
 “night “– is defined as 9:00 p.m. until 6:00 a.m.
 “on or near” – is determined based on each set of circumstances but it must be related to a dwelling
house

Most of the trespassing offences for the investigator will be under provincial law as detailed below.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 34
 Petty Trespass Act
There are times investigators need to get out and do the footwork. Often this entails looking around a public
space but could as likely be private property. As an investigator you are not entitled to enter land that is clearly
marked as being private and has the appearance of keeping people out. Entry onto this type of property could
be deemed as trespassing under the Petty Trespass Act and any information or evidence gained is likely to be
non-admissible. This does not mean you cannot take pictures of items that are in sight on the land.

The two main relevant sections of the Petty Trespass Act are as follows: 2(1)

Every person who

a) without the permission of the owner or occupier of land enters on land when entry is prohibited under
section 2.1,or
b) does not leave land immediately after he or she is directed to do so by the owner or occupier of the land
or a person authorized by the owner or occupier is guilty of an offence

2.1(1) Entry on land may be prohibited by notice to that effect, and entry is prohibited without any notice on
land

a) that is a lawn, garden or land that is under cultivation,

b) that is surrounded by a fence, a natural boundary or a combination of a fence and a natural
boundary, or
c) that is enclosed in a manner that indicates the owner’s or occupier’s intention to keep persons off the land
or to keep animals on the land

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 35
SURVEILLANCE AND AUDIO RECORDING

One of the main tools in the toolkit of the investigator is surveillance. Often in security organizations
investigators are split into two categories: general investigations and surveillance. Here we will look at how
specific laws affect the surveillance component of investigations. There are two aspects of law which we will
see applied.

The Criminal Code of Canada has two sections which directly affect the investigator engaging in
surveillance. The first is Section 184 which states that it is an offence to willfully intercept the private
communications of an individual. If this is the case, then how can conversations be recorded and presented in
court? The answer is found in the saving provision of Section 2, where conversations can be recorded if they
meet one of two conditions. The first is that you have consent. The second is that you are part of the
conversation, meaning that if one of the parties in the conversation agrees to the recording, it can be recorded.
So if you are the person who is originating the conversation or the person for whom the conversation is
intended, you can record it.

Section 184: Interception of Communications

184. (1) Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, willfully
intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.
(2) Subsection (1) does not apply to

(a) 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 thereof to receive it; (R.S.C., 1985, c. C-46)

A great risk in surveillance is capturing unexpectedly the communications of others as part of your surveillance.
The best way to avoid this is to disable the audio on any video equipment. Audio disabling is considered a best
practice.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 36
 Class Discussion Activity

An investigator is watching a target person who is meeting with friends in a public park. This target
has made an insurance claim laiming a bad back. The investigator is videotaping this individual
playing football in the park with his friends. The individual is diving for balls and being tackled.
During the football game the investigator hears the target bragging to his friends about this false injury
claim so he can get some money back from his insurance company, your client.

When the investigator downloads the video he finds the entire conversation was captured along with
the video.

Is this audio admissible in court?

If not, have your created any risk for yourself?

Can you present evidence of the conversation in court?

Answers:

Is this audio admissible in court?

If not, have you created any risk for yourself?

Can you present evidence of the conversation in court?

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 37
Group Discussion Activity on Whiz Bang Computers and Electronics

Privacy Issues in Covert Video Surveillance

The Federal Office of the Privacy Commissioner has drafted a report entitled: Guidance on Covert Video
Surveillance in the Private Sector (page 55 in this module), which will be used in the following activity:

The report is based on the following statements:

“The capturing of images of identifiable individuals through covert video surveillance is considered to be
a collection of personal information.”

“Organizations that are contemplating the use of covert video surveillance should be aware of the
criteria they must satisfy in order to collect, use and disclose video surveillance images in compliance
with PIPEDA.”

In yo r small groups review one of the following italicized sections:

1. Demonstrable, evidentiary need

2. Information collected by surveillance achieves the purpose

3. Loss of privacy proportional to benefit gained

4. Less privacy-invasive measures taken first

For the purposes of this exercise, imagine y u want to establish covert surveillance in the Whiz Bang
Computers and Electronics case. As a group, decide where or who you might want to conduct surveillance on and
then make a case using your assigned section (1-4) above from the Guidance on Covert Video Surveillance in
the Private Sector.

Each group will m ke a presentation about its arguments.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 38
EVIDENCE ACTS

The Criminal Code defines which illegal behaviours are criminal and can be processed through the criminal
court system. The process and the evidence requirements for cases that go through the criminal courts are laid
out in the Canada Evidence Act. The Canada Evidence Act provides rules of evidence but only for
federally-regulated cases. If you are an investigator who will be doing criminal or federally-related
investigations, you will need to know the rules of evidence as they apply.

Other investigations will fall under the rules of the Alberta Evidence Act. Although the rules differ in some
aspects, they are essentially the same. This section will provide an overview of the basic rules that apply to the
investigator. It will cover burden of proof required to prove a case, types of evidence, and competent and
compellable witnesses. In criminal law the level or standard of proof is beyond a reasonable doubt.

Canada Evidence Act

“applies to all criminal and civil proceedings and other matters whatever respecting which Parliament has
jurisdiction.” (s. 2 CEA)

Alberta Evidence Act

This Act extends and applies to evidence offered or taken
a) orally,
b) by interrogatories,
c) by affidavits,
d) by the production of documents or things, or
e) otherwise,
by or before a court in an action. (S.2 AEA) Some

key terms relating to the rules of evidence:

Competent – refers to the fact that one is able to provide evidence. Example: A person seeing a crime is a
competent witness. Rules of note in relation to being competent are:
 A person is not considered incompetent to testify by means of being involved or having an interest in the
crime. (s. 3 CEA)
 A person not having the mental abilities or communications skills needed to understand and present
evidence to a court may not be competent

Compellable – refers to the ability to force one to provide evidence. One is compelled to testify by way of
subpoena. Rules of note that apply to being compellable are:
 A spouse is cannot be compelled to testify about communications made with their spouse during
marriage. (s. 4(3) CEA) (s. 4(2) AEA) (there are some exceptions for some offences)
 An accused cannot be compelled by the prosecution to testify (s. 4(1) CEA) s. 4(3) AEA)
 Privileged conversations (with legal counsel) are not compellable.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 39
 Burden of Proof:

In a criminal case, the party who bears the burden to prove the case is the Crown.

In a civil case, the burden rests with the plaintiff (the person who is initiating the case)

Standard of Proof:

During a criminal trial, the Crown prosecutor needs to prove beyond a reasonable doubt that the accused
committed the offence. This should not be interpreted as proof beyond any doubt, but once it crosses the
threshold of “reasonable” doubt, then the Courts must acquit the defendant. The term “reasonable” refers to a set
of facts and circumstances which cause an ordinary, cautious and prudent person to believe something that goes
beyond mere suspicion.

The standard of proof in a civil matter is less. Here the obligation is for the plaintiff to prove the case based on
a balance of probabilities. This is a sliding scale. For minor matters the balance of probabilities may be reached
when approximately 51% of the evidence lies in favour for the plaintiff. As the potential penalties increase in
severity, Courts will want to see higher standards met although they will rarely meet the criminal standard.
Administrative hearings will often use the civil standard.

Best Evidence Rule:

The expectation is that the original evidence will be produced. If not, the best evidence available will be
produced. However the further removed that evidence is from the original evidence, the more doubt can be
cast on its admissibility. For example, the original traffic intersection where an injury accident took place
obviously cannot be brought into court. Best evidence would be photographs of the intersection that were
taken at the time of investigation. There are exceptions in the law; an example would be business records,
where a notarized copy can be considered best evidence.

Opinion Evidence:

Opinion evidence is usually an opinion offered by an expert regarding the matter in question. An expert is who
the court decides is an expert.

Civil Law

Civil law deals with matters that are not criminal or do not relate to an offence against society. In civil law the
offence is a private matter, not an offence against the public.

This area of law deals with disputes between private parties. Its purpose is to provide compensation for
individuals or organizations for wrongs done.

Frequent areas of civil claims (and investigative work) include:

 Injuries (use e.g. use of force by bar personnel)
 Accidents (e.g. insurance investigations)
 Breach of contract (e.g. employment contracts)
 Breach of duty (e.g. service contracts)
 Family matters (e.g. divorce, wills)
 Improper work (e.g. constructions contracts)
 Intellectual property (e.g. copyright or trademarks)

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 40
 Powers to Search in Civil Law

There are two court-ordered search provisions related to property. In both provisions the investigator may help
in obtaining the information but it will be a lawyer that will need to apply for the court order. The first is an
Anton Piller Order, which is a civil search warrant. The second is a court-ordered release of documents related
to a case before the courts. This latter provision could apply to organizational records or police reports, which
would then be made available.

Common or Case Law

Common or case law is also known as precedent law. Principles and interpretations of law from previously
adjudicated cases are used by judges in deliberating current cases. These judgments provide the standards of
expectation and outcome on future court actions. The higher the level of the court that sets the precedence, the
more binding that judgment is on the lower courts.

Tort Law
A tort is a civil wrong that can be addressed through legal action to provide remedy to the individual(s) whose
person or property has been affected. It is defined in Black’s Law Dictionary (online) as follows:

A tort is a legal wrong committed upon the person or property independent of contract. It may be either
(1) a direct invasion of some legal right of the individual; (2) the infraction of some public duty by which
special damage accrues to the individual; (3) the violation of some private obligation by which like
damage accrues to the individual.

Tort legal actions are major sources of work for the professional investigator. In tort cases frequently a lawyer
or law firm representing the individual is the client who is trying to right a wrong they believe their client has
suffered. In many of these cases the lawyer will be the one to direct the elements of the case.

Examples of a tort

1. A manager works for a company that builds and refits machinery. As part of the production process
there is much scrap steel. Instead of selling the scrap steel to a salvage yard and putting that money into
the company accounting system, the manager starts a side business where he sells the used parts and
steel through an online auction site and pockets the money. This is a case where the courts would hold
that the manager’s enterprise is competing with his company.

2. While walking past the front of an office space a person is hit by ice that slides off the roof and causes
injury. Although there was no intent to injure, a wrongdoing (tort) may be deemed to have happened to the
passerby.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 41
 Class Activity: Matching Exercise

Match the terms in the left-hand column with the appropriate words or phrases in the right-hand column.

The document used to search Defendant

property in a civil case

A wrong-doing Respondent

Person in charge of presenting a Balance of

criminal case at court probabilities

Standard of proof at a civil trial Beyond a

reasonable
doubt

Document used to search in a Plaintiff

criminal case

Name of the person who is alleged to Prosecutor

have done something wrong in a
criminal trial

Standard of proof at a criminal trial Tort

Person wronged in a civil trial Anton Pillar

Order

Person who is alleged to have Search

committed the wrong at a civil trial warrant

Accused

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 42
CONCLUSION

You should now have a good idea of what is expected of a security professional and the ways in which you can best
strive to meet those expectations. The legislation provides the legal framework in which you must perform your
duties. Your employer defines where you do your work and under what circumstances it should be performed. But
the choice to be exemplary in your field is yours alone. By demonstrating professionalism and respect for the law
and your organization, you are setting an example for the clients and community you will serve.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 43
 Post-Test
Check your progress. How much do you recall?

1. Section of the Canadian Charter of Rights and Freedoms refers to

being detained or imprisoned.

2. Section 494 states you may arrest an individual who commits an indictable
offence.
a. True
b. False

3. When you arrest an individual, you have the option to tell the person to call
.

4. Assault is an example of a (n) offence.

5. Picking the lock on a secured office and removing items without permission is an example of what
type of crime .

6. When determining citizen’s powers of arrest, the term “founds committing” means that the citizen can
deduce that the suspect committed the crime.
a. True
b. False

7. For the crime of Break and Enter, a person is deemed to have “broken” into a place if they have walked
through an open doorway leading to the interior of the premise.
a. True
b. False

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 44
ADDENDUM: FURTHER INFORMATION ON CRIMINAL CODE

Introduction

It is important to know the value in understanding the basic Criminal Code Sections and how they are examined
by the Crown and the Courts. An online version is available and is valuable but does not provide case law, which
does help to understand the court’s positions on different sections and the contents of sections. Two links are listed
below which are helpful: the first is an online version of the Criminal Code of Canada and the second is the
foremost link for case law.
 Criminal Code of Canada online: http://laws-lois.justice.gc.ca/eng/acts/C-46/
 Case Law Site: http://www.canlii.org/

Definitions within the Criminal Code of Canada

In working with sections in the Criminal Code it is important to understand the definition of a term within the
section. Many terms are defined in the Code. The trick is to know where to look for them.
There are four general rules for finding the definition of key terms. First,
many terms are defined in section 2 of the statute.
Second, look at the beginning of the Part in which the offence is found. For example the offence of theft is found
in Part 9, Offences Against Rights of Property, and the definition for ‘break’ is found here.
Third, look in the sections before or after the section where the term is found. Here you are most likely to find
information related to the offence.
Last, if the term does not have a definition you can find, it is likely you will find a definition in case law. A good
Criminal Code will include case law related to the sections which provide additional information relating to what
the courts have set as expectations.
Parties to offence
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to
assist each other therein and any one of them, in carrying out the common purpose, commits an offence,
each of them who knew or ought to have known that the commission of the offence would be a probable
consequence of carrying out the common purpose is a party to that offence.
R.S., c. C-34, s. 21.

Personating a Peace Officer

130. (1) Everyone commits an offence who

(a) falsely represents himself to be a peace officer or a public officer; or
(b) not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner
that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.
(2) Everyone who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term of not more than five years;
or
(b) is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 130; 2009, c. 28, s. 2.

Perjury

131. (1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person
who is authorized by law to permit it to be made before him a false statement under oath or

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 45
solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.
132. Every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term
not exceeding fourteen years.
R.S., 1985, c. C-46, s. 132; R.S., 1985, c. 27 (1st Supp.), s. 17; 1998, c. 35, s. 119.

Witness giving contradictory evidence

136. (1) Every one who, being a witness in a judicial proceeding, gives evidence with respect to any matter of
fact or knowledge and who subsequently, in a judicial proceeding, gives evidence that is contrary to his previous
evidence is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years,
whether or not the prior or later evidence or either is true, but no person shall be convicted under this section
unless the court, judge or provincial court judge, as the case may be, is satisfied beyond a reasonable doubt that
the accused, in giving evidence in either of the judicial proceedings, intended to mislead.

Fabricating evidence

137. Everyone who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a
judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an
indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Offences relating to affidavits

138. Everyone who

(a) signs a writing that purports to be an affidavit or statutory declaration and to have been sworn or
declared before him when the writing was not so sworn or declared or when he knows that he has no
authority to administer the oath or declaration,
(b) uses or offers for use any writing purporting to be an affidavit or statutory declaration that he knows
was not sworn or declared, as the case may be, by the affiant or declarant or before a person authorized
in that behalf, or
(c) signs as affiant or declarant a writing that purports to be an affidavit or statutory declaration and to
have been sworn or declared by him, as the case may be, when the writing was not so sworn or
declared,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. R.S., c.
C-34, s. 126.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 46
Obstructing Justice

139. (2) Everyone who willfully attempts in any manner other than a manner described in subsection (1) to
obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years. (3) Without restricting the generality of subsection (2), every one shall be deemed
willfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or
proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving
evidence;
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct
as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt consideration to
abstain from giving evidence, or to do or to refrain from doing anything as a juror.
R.S., c. C-34, s. 127; R.S., c. 2(2nd Supp.), s. 3; 1972, c.13, s. 8.

Interception

184. (1) Everyone who, by means of any electro-magnetic, acoustic, mechanical or other device, willfully
intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.
(2) Subsection (1) does not apply to (a) 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 thereof to receive it.

Possession

191. (1) Every one who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or
any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of
private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two
years.

Disclosure of information received from interception of radio-based telephone communications

193.1 (1) Every person who wilfully uses or discloses a radio-based telephone communication or who wilfully
discloses the existence of such a communication is guilty of an indictable offence and liable to imprisonment
for a term not exceeding two years, if
(a) the originator of the communication or the person intended by the originator of the
communication to receive it was in Canada when the communication was made;
(b) the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other
device without the consent, express or implied, of the originator of the communication or of the person
intended by the originator to receive the communication; and
(c) the person does not have the express or implied consent of the originator of the
communication or of the person intended by the originator to receive the communication.

Assault

265. (1) A person commits an assault when

a) without the consent of another person, he applies force intentionally to that other person, directly
or indirectly;
b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or
causes that other person to believe on reasonable grounds that he has, present ability to effect
his purpose; or
c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 47
 (2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon,
threats to a third party or causing bodily harm and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not
resist by reason of
a) the application of force to the complainant or to a person other than the complainant;
b) threats or fear of the application of force to the complainant or to a person other than the
complainant;
c) fraud; or
d) the exercise of authority.

Intimidation

423. (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than five
years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority,
for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do,
or to do anything that he or she has a lawful right to abstain from doing,
(a) uses violence or threats of violence to that person or his or her spouse or common law partner
or children, or injures his or her property;
(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada
or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative
of his or hers, or that the property of any of them will be damaged;
(c) persistently follows that person;
(d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of
them or hinders him or her in the use of them;
(e) with one or more other persons, follows that person, in a disorderly manner, on a highway;
(f) besets or watches the place where that person resides, works, carries on business or happens
to be; or
(g) blocks or obstructs a highway.

Unauthorized use of computer

342.1 (1) Every one who, fraudulently and without colour of right,
(a) obtains, directly or indirectly, any computer service,
(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be
intercepted, directly or indirectly, any function of a computer system,
(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence
under paragraph (a) or (b) or an offence under section 430 in relation to data or a computer system, or
(d) uses, possesses, traffics in or permits another person to have access to a computer password that would
enable a person to commit an offence under paragraph (a), (b) or (c) is guilty of an indictable offence and
liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on
summary conviction.
(2) In this section,
“computer password” means any data by which a computer service or computer system is capable of
being obtained or used;
“computer program” means data representing instructions or statements that, when executed in a
computer system, causes the computer system to perform a function;
“computer service” includes data processing and the storage or retrieval of data;
“computer system” means a device that, or a group of interconnected or related devices one or more of
which,
(a) contains computer programs or other data, and
(b) pursuant to computer programs,
(i) performs logic and control, and
(ii) may perform any other function;
“data” means representations of information or of concepts that are being prepared or have been prepared in
a form suitable for use in a computer system;

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 48
Theft

322. (1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without
colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or
interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be
unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the
time it was taken or converted.
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be
moved, or begins to cause it to become movable.
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without
secrecy or attempt at concealment.
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose
of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who
converts it is not material.

Robbery

343. Every one commits robbery who

(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome
resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter,
wounds, beats, strikes or uses any personal violence to that person; (c) assaults any person with intent to
steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof. R.S., c.
C-34, s. 302.

Break and Enter

348. (1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein, is
guilty
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence
and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable
offence and liable to imprisonment for a term not exceeding ten years or of an offence
punishable on summary conviction.

Place is defined in section 348 (3):

a) A dwelling house
b) A building or structure or any part thereof, other than a dwelling house;
c) A railway vehicle, a vessel, an aircraft, or a trailer; or
d) A pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or
commercial purposes.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 49
Possession of property obtained by crime

354. (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any
property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived
directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence
punishable by indictment.

False pretence

361. (1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise,
that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person
to whom it is made to act on it.
362. (1) Every one commits an offence who
(a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretence,
obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to
another person;
(b) obtains credit by a false pretence or by fraud;
(c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent
that it should be relied on, with respect to the financial condition or means or ability to pay of himself or
herself or any person or organization that he or she is interested in or that he or she acts for, for the
purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or
organization,
(i) the delivery of personal property,
(ii) the payment of money,
(iii)the making of a loan,
(iv) the grant or extension of credit,
(v) the discount of an account receivable, or
(vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or
promissory note; or
(d) knowing that a false statement in writing has been made with respect to the financial condition or
means or ability to pay of himself or herself or another person or organization that he or she is interested in
or that he or she acts for, procures on the faith of that statement, whether for his or her benefit or for the
benefit of that person or organization, anything mentioned in subparagraphs (c) (i) to (vi).

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 50
Forgery

366. (1) Every one commits forgery who makes a false document, knowing it to be false, with intent
(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within
Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing
anything, whether within Canada or not.
(2) Making a false document includes
(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date,
attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in
any other way.
(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in
subsection (1), notwithstanding that the person who makes it does not intend that any particular person
should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing
anything.
(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be
a document that is binding in law, if it is such as to indicate that it was intended to be acted on as
genuine.
(5) No person commits forgery by reason only that the person, in good faith, makes a false document at
the request of a police force, the Canadian Forces or a department or agency of the federal government or
of a provincial government.
R.S., 1985, c. C-46, s. 366; 2009, c. 28, s. 7.

Fraud

380. (1) 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, where the value of the subject-matter
of the offence does not exceed five thousand dollars.
Mischief

430. (1) Every one commits mischief who wilfully

(a) destroys or damages property;
(b) renders property dangerous, useless, inoperative or ineffective;
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of
property.

(1.1) Every one commits mischief who wilfully

(a) destroys or alters data;
(b) renders data meaningless, useless or ineffective;
(c) obstructs, interrupts or interferes with the lawful use of data; or
(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to
any person who is entitled to access thereto.

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable
to imprisonment for life.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 51
(4) Every one who commits mischief in relation to property, other than property described in subsection (3),
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years;
or
(b) is guilty of an offence punishable on summary conviction

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 52
ADDENDUM: GUIDANCE ON COVERT VIDEO SURVEILLANCE IN THE PRIVATE
SECTOR

Introduction and scope16

The Office of the Privacy Commissioner considers covert video surveillance to be an extremely privacy- invasive
form of technology. The very nature of the medium entails the collection of a great deal of personal information
that may be extraneous, or may lead to judgments about the subject that have nothing to do with the purpose for
collecting the information in the first place. In the Office's view, covert video surveillance must be considered only
in the most limited cases.

This guidance is based on the federal private sector privacy law The Personal Information Protection and
Electronic Documents Act (PIPEDA), and is intended to outline the privacy obligations and responsibilities of
private sector organizations contemplating and engaging in covert video surveillance. We consider video
surveillance to be covert when the individual is not made aware of being watched.

This document serves as a companion piece to the following guidelines for video surveillance issued by this office:
Guidelines for Overt Video Surveillance in the Private Sector (prepared in collaboration with Alberta and British
Columbia) and Guidelines for surveillance of public places by police and law enforcement authorities.

Please note that the following is guidance only. We consider each complaint brought before us on a case-by-
case basis.

PIPEDA requirements governing covert video surveillance

PIPEDA governs the collection, use and disclosure of personal information in the course of a commercial activity
and in the employment context of federally regulated employers1. The capturing of images of identifiable
individuals through covert video surveillance is considered to be a collection of personal information.
Organizations that are contemplating the use of covert video surveillance should be aware of the criteria they must
satisfy in order to collect, use and disclose video surveillance images in compliance with PIPEDA. These criteria
are outlined below and address the purpose of the covert video surveillance, consent issues, and the limits placed
on collecting personal information through covert video surveillance.

A common misconception is that organizations are released from their privacy obligations if covert video
surveillance is conducted in a public place. In fact, under PIPEDA, any collection of personal information taking
place in the course of a commercial activity or by an employer subject to PIPEDA, regardless of the location, must
conform to the requirements described below.

A. Purpose

The starting point for an organization that is contemplating putting an individual under surveillance without their
knowledge is to establish what purpose it aims to achieve. What is the reason for collecting

16
Office of the Privacy Commissioner of Canada (2009). Retrieved from http://www.priv.gc.ca/information/pub/gd_cvs_ 20090527_e.asp

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 53
the individual’s personal information through covert video surveillance? Under PIPEDA, an organization may
collect, use or disclose personal information only for purposes that a reasonable person would consider appropriate in
the circumstances (subsection 5(3)).

In deciding whether to use covert video surveillance as a means of collecting personal information, an organization
should closely examine the particular circumstances of why, when and where it would collect personal information
and what personal information would be collected. There are a number of considerations that factor into
determining whether an organization is justified in undertaking covert video surveillance. Given the different
contexts in which covert video surveillance may be used, the ways in which the factors apply and are analyzed vary
depending on the circumstances.

Demonstrable, evidentiary need

In order for the organization’s purpose to be considered appropriate under PIPEDA, there must be a demonstrable,
evidentiary need for the collection. In other words, it would not be enough for the organization to be acting on a mere
suspicion. The organization must have a strong basis to support the use of covert video surveillance as a means of
collecting personal information.

Information collected by surveillance achieves the purpose

The personal information being collected by the organization must be clearly related to a legitimate business
purpose and objective. There should also be a strong likelihood that collecting the personal information will help
the organization achieve its stated objective. The organization should evaluate the degree to which the personal
information being collected through covert video surveillance will be effective in achieving the stated purpose.

Loss of privacy proportional to benefit gained

Another factor to be considered is the balance between the individual’s right to privacy and the organization’s need
to collect, use and disclose personal information. An organization should ask itself if the loss of privacy is
proportional to the benefit gained. It may decide that covert video surveillance is the most appropriate method of
collecting personal information because it offers the most benefits to the organization. However, these advantages
must be weighed against any resulting encroachment on an individual’s right to privacy in order for a reasonable
person to consider the use of covert surveillance to be appropriate in the circumstances.

Less privacy-invasive measures taken first

Finally, any organization contemplating the use of covert video surveillance should consider other means of
collecting the personal information given the inherent intrusiveness of covert video surveillance. The organization
needs to examine whether a reasonable person would consider covert video surveillance to be the most appropriate
method of collecting personal information under the circumstances, when compared to less privacy-invasive
methods.

B. Consent

As a general rule, PIPEDA requires the individual’s consent to the collection, use and disclosure of personal
information (Principle 4.3). It is possible for covert video surveillance to take place with consent. For example, an
individual can be considered to have implicitly consented to the collection of their

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 54
personal information through video surveillance if that individual has initiated formal legal action against the
organization and the organization is collecting the information for the purpose of defending itself against the legal
action. It is important to note that implied consent does not authorize unlimited collection of an individual’s
personal information but limits collection to what is relevant to the merits of the case and the conduct of the
defence.

In most cases, however, covert video surveillance takes place without consent. PIPEDA recognizes that there are
limited and specific situations where consent is not required (paragraph 7(1) (b)). In order to collect information
through video surveillance without the consent of the individual, organizations must be reasonably satisfied that:

 collection with the knowledge and consent of the individual would compromise the availability or
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.

The exception to the requirement for knowledge and consent could, in certain circumstances, provide for the
collection of a third party’s personal information.

In the employment context, an organization should have evidence that the relationship of trust has been broken
before conducting covert video surveillance. Organizations cannot simply rely on mere suspicion but must in fact
have evidentiary justification.

Regardless of whether or not consent is obtained, organizations must have a reasonable purpose for collecting the
information.

C. Limiting collection

When collecting personal information, organizations must take care to limit both the type and amount of
information to that which is necessary to fulfill the identified purposes (Principle 4.4). Organizations should be
very specific about what kind of personal information they are looking to collect and they should limit the duration
and scope of the surveillance to what would be reasonable to meet their purpose. Moreover, the collection must be
conducted in a fair and lawful manner.

As well, organizations must limit the collection of images of parties who are not the subject of an investigation.
There may be situations in which the collection of personal information of a third party2 via covert video
surveillance could be considered acceptable provided the organization has reason to believe that the collection of
information about the third party is relevant to the purpose for the collection of information about the subject.
However, in determining what is reasonable, the organization must distinguish between persons who it believes
are relevant to the purposes of the surveillance of the subject and persons who are merely found in the company of
the subject. In our view, PIPEDA does not allow for the collection of the personal information of the latter group
without their knowledge or consent.

Organizations can avoid capturing individuals who are not linked to the purpose of the investigation by being more
selective during video surveillance. If such personal information is captured, it should be deleted or depersonalized
as soon as is practicable. This refers not only to images of the individuals themselves, but also to any information
that could serve to identify them, such as street numbers and licence plates. We advocate the use of blurring
technology when required. Though we acknowledge its cost to organizations, we view the expenditure as
necessary given that, pursuant to PIPEDA, the

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 55
personal information of any individual can only be collected, used and disclosed without consent in very limited and
specific situations.

The need to document

Proper documentation by organizations is essential to ensuring that privacy obligations are respected and to protect
the organization in the event of a privacy complaint. Organizations should have in place a general policy that
guides them in the decision-making process and in carrying out covert video surveillance in the most privacy-
sensitive way possible. There should also be a documented record of every decision to undertake video
surveillance as well as a record of its progress and outcome.

1. Policy on covert video surveillance

Organizations using covert video surveillance should implement a policy that:

 sets out privacy-specific criteria that must be met before covert video surveillance is undertaken;
 requires that the decision be documented, including rationale and purpose;
 requires that authorization for undertaking video surveillance be given at an appropriate level of the
organization;
 limits the collection of personal information to that which is necessary to achieve the stated
purpose;
 limits the use of the surveillance to its stated purpose;
 requires that the surveillance be stored in a secure manner;
 designates the persons in the organization authorized to view the surveillance;
 sets out procedures for dealing with third party information;
 sets out a retention period for the surveillance; and
 sets out procedures for the secure disposal of images.

2. Documenting specific instances of video surveillance

There should be a detailed account of how the requirements of the organization’s policy on video surveillance have
been satisfied, including:

 a description of alternative measures undertaken and their result;

 a description of the kind of information collected through the surveillance;
 the duration of surveillance;
 names of individuals who viewed the surveillance;
 what the surveillance was used for;
 when and how images were disposed of; and
 a service agreement with any third party hired to conduct the surveillance, if applicable.

Best practices for using private investigation firms

Many organizations hire private investigation firms to conduct covert video surveillance on their behalf. It is the
responsibility of both the hiring organization and the private investigation firm to ensure that all collection, use and
disclosure of personal information is done in accordance with privacy legislation. We strongly encourage the
parties to enter into a service agreement that incorporates the following:

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 56
  confirmation that the private investigation firm constitutes an “investigative body” as described in
PIPEDA “Regulations Specifying Investigative Bodies”;
 an acknowledgement by the hiring organization that it has authority under PIPEDA to collect from and
disclose to the private investigation firm the personal information of the individual under investigation;
 a clear description of the purpose of the surveillance and the type of personal information the hiring
organization is requesting;
 the requirement that the collection of personal information be limited to the purpose of the
surveillance;
 the requirement that the collection of third party information be avoided unless the collection of
information about the third party is relevant to the purpose for collecting information about the subject;
 a statement that any unnecessary personal information of third parties collected during the surveillance
should not be used or disclosed and that it should be deleted or depersonalized as soon as is practicable;
 confirmation by the private investigation firm that it will collect personal information in a manner
consistent with all applicable legislation, including PIPEDA;
 confirmation that the private investigation firm provides adequate training to its investigators on the
obligation to protect individuals’ privacy rights and the appropriate use of the technical equipment used
in surveillance;
 the requirement that the personal information collected through surveillance is appropriately
safeguarded by both the hiring organization and the private investigation firm;
 the requirement that all instructions from the hiring company be documented;
 a provision prohibiting the use of a subcontractor unless previously agreed to in writing, and unless
the subcontractor agrees to all service agreement requirements;
 a designated retention period and secure destruction instructions for the personal information;
 a provision allowing the hiring company to conduct an audit.

1
For information on whether your organization is subject to PIPEDA, please see “A Guide for Business and
Organizations” online at http://www.priv.gc.ca/information/guide_e.cfm

2
By “third party”, we mean the person who is not the subject of surveillance.

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 57
REFERENCES AND ADDITIONAL RESOURCES

Black’s Law Dictionary online. Retrieved from http://thelawdictionary.org/

Canadian Legal Information Institute. Retrieved from http://www.canlii.org/

Government of Canada (1982). Canadian Charter of Rights and Freedoms. Retrieved from
http://laws-lois.justice.gc.ca/eng/charter/

Government of Canada (1985). Canada Evidence Act (R.S.C. 1985, c. C-5). Retrieved from
http://laws-lois.justice.gc.ca/eng/acts/C-5/

Government of Canada (1985). Criminal Code of Canada, R.S.C., 1985, c. C-46. Retrieved from
http://laws-lois.justice.gc.ca/eng/acts/C-46/

Government of Canada (1996). Controlled Drugs and Substances Act (S.C. 1996, c. 19). Retrieved from
http://laws-lois.justice.gc.ca/eng/acts/ C-38.8/

Government of Canada (2000). Personal Information Protection and Electronic Documents Act S.C.
2000, c. 5. Retrieved from http://laws-lois.justice.gc.ca/eng/acts/P-8.6/

Jurist Canada (2002). Canadian legal dictionaries. Retrieved from http://jurist.law.utoronto.ca/dictionary.htm

Menary, C. (2011).The Canadian private investigator’s professional guidebook. Toronto: Carswells.

Office of the Privacy Commissioner of Canada (2009). Guidance on covert video surveillance in the private
sector. Retrieved from http://www.priv.gc.ca/ information/pub/gd_cvs_20090527_e.cfm

Province of Alberta (2010). Alberta Evidence Act. Retrieved from

http://www.qp.alberta.ca/documents/Acts/A18.pdf

Province of Alberta (2010). Alberta Human Rights Act. Retrieved from http://www.qp.alberta.ca/574.cfm?
page=A25P5.cfm&leg_ type=Acts&isbncln=9780779744060

Province of Alberta (2012). Personal Information Protection Act. Retrieved from

http://www.qp.alberta.ca/574.cfm?page=P06P5.cfm&leg_type=Acts&is bncln=9780779762507

Province of Alberta (2008). Security Services and Investigators Act. Retrieved from
http://www.qp.alberta.ca/documents/Acts/SO47.pdf
Province of Alberta (2012). Security Services and Investigators Act Policy Manual. Retrieved from
http://www.solgps.alberta.ca /

Province of Alberta (2010). Security Services and Investigators Regulation. Retrieved from
http://www.qp.alberta.ca/documents/Regs/2010_ 052.pdf

Alberta Ministry of Justice and Solicitor General Alberta Professional Investigator Training
July-12 Participant Manual Page 58