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Collecting evidence covertly is useless if not defensible in court

Evidence collected by private investigators needs to be “court defensible,” Toronto-area private detective Jim Downs tells AdvocateDaily.com.

Downs, founding partner and managing director of MKD International Inc., says that good investigators are always cognizant of what he calls the “rules of engagement” when working on a file so that no ethical or legal lines are crossed.

“You have to be able to defend your actions in a court of law, an arbitration, or wherever else it might end up being used,” he says. “You have to always think in those terms because if you can’t defend it, and the evidence is thrown out because it was collected improperly, then it’s a waste of everyone’s time and money.”

Downs says he developed this mindset during a career as a detective with the Toronto Police Service, where officers are trained to gather evidence in a manner that will ultimately be approved by a judge.

MKD, a Vaughan, Ont.-based private investigations firm, is the only company of its size in Canada comprised entirely of former police officers, Downs says, and in some ways, his team is more free to operate than back in their old careers, because of the unique laws that limit policing.

For example, the law generally allows Canadians to record conversations in which they are involved, without informing the other participants, he says.

“But police can’t do that, even if they’re a party to the conversation,” Downs says. “If they’re recording, they need to either tell the other party or get a warrant that allows them to do it.”

Just like with police, an individual subject’s privacy is the primary concern for private investigators during an engagement, he says.

“When you’re talking about surveillance, it has to be conducted in a public place. If you’re in a place where the general public is, such as in the street or the lobby of a building, that’s generally allowed,” Downs says. “But, once they get behind closed doors, the situation changes.”  

Still, there are plenty of grey areas, and that's when investigators must ask themselves if the person has a reasonable expectation of privacy before carrying out any kind of electronic surveillance, he says.

For example, Downs explains that it might be OK to follow someone into a public washroom, but not to surreptitiously record video once there.

“If you’re sitting in front of someone’s house, and they’re prancing around with no clothes on with the curtains wide open, that’s probably fair game, as long as it’s something that can readily be seen,” he says. “But, you can’t go creeping up to peer in the window of someone’s property because it can become a trespass issue.”

In addition, Downs will bear in mind a person’s expectation of privacy during the crucial research phase of an investigation, when he looks into the background of a subject.

“You can only go through public access routes as opposed to hacking into someone's Facebook account, because breaching a person’s privacy doesn’t just occur when you’re carrying out recordings using covert cameras,” Downs says.

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