Good Day Folks:After posting the article, Should the Government Need a Search Warrant to track your car with GPS? (Time Magazine July 5, 2011 - Adam Cohen) we wondered what is the situation here? In the United States the law is being unevenly applied - some jurisdictions require it while others don't. Civil liberty groups have convinced the Supreme Court to consider the issue which it will sometime during the upcoming fall session.
We began our journey with the 311 police non emergency number and were referred to an officer who did not know. Shortly thereafter we happened to pass a district police office so stopped in but again came up empty. Next it was on to a young duty Crown in the Crown Attorneys Office who was unable to provide a definitive answer.
By now verging on desperation we turned to The Community Legal Education Association where Law Phone-in Lawyer Jennifer went beyond the call of duty twice telephoning us with the results of her efforts. She directed us to Part XV Section 492(1) of the Criminal Code of Canada - INFORMATION FOR TRACKING WARRANT/ Time limit for warrant/Further Warrants/Definition of "Tracking Device."
Armed with that information it was a little hop, skip, and a jump to find the layperson explanation reproduced below. Again, thank you Jennifer.
BTW, no we're not worried about a GPS being attached to our vehicle. As noted in our July 5th posting, Beat the government get in shape cycle, run or walk! which introduced the Time Magazine article, fed up with "The Harper Government" constantly telling Canadians they're out of shape and obese (notice they never use the "f word" to describe us), we decided to walk everywhere we can. Besides, it's a good way to work on a tan.
Sincerely,
Clare L. Pieuk
__________________________________________________
Tracking Devices and Surveillance Investigations in Canada
By Telematics-Online Research & Investigation
Friday, September 4, 2009
A number of inquiries have been received pertaining to the legality of using such equipment as GPS tracking devices to assist in surveillance investigations. The scenarios posed most often are insurance cases where the claimant displays counter-surveillance precautions. This article will discuss a number of legal and business concerns pertaining to such practices.
Criminal Law
From the criminal law perspective, placing a tracking device without authorization on a subject's vehicle may result in a charge of mischief. Section 430(1) of the Criminal Code provides that "Everyone commits mischief who willfully...(c) interrupts [or] interferes with the lawful use, enjoyment or operation of property. While no case law is known discussing this scenario in the criminal realm, it is foreseeable that the placement of a tracking device on a subject's vehicle may be held to be an unlawful interference with the enjoyment of personal property.
Further credence to the criminal unlawfulness of tracking devices comes from Section 492 of the Criminal Code. Section 492 provides that any person or peace officer may seek a warrant authorizing the use of a tracking device. Such warrants can be obtained by private investigators by submitting an information under oath in writing to a justice. The information must contain reasonable grounds to suspect that an offense under the Criminal Code or any other Act has been or will be committed. The warrant is good for up to sixty days and can be extended if necessary. In the case of insurance surveillance, it would be necessary to submit reasonable grounds to suspect some form of fraud in order to obtain such a warrant. No reported cases have discussed the use of this warrant by private investigators.
Tort Law
The tort of trespass to chattels would also apply to the unauthorized placement of a tracking device on a subject's vehicle. The tort of trespass to chattels requires that the tort feasor directly and intentionally commit an unauthorized interference with the chattel of another. Obviously this would apply to a situation wherein a person applies a tracking device to the vehicle of another without their authorization. Although the application of tracking device to another's vehicle will most often not cause any damage to the vehicle, the liability for this action may arise under punitive or exemplatory damages where a court seeks to punish the tort feasor for their unlawful act. No reported Canadian case law has discussed this tort as it applies to the unauthorized use of tracking devices.
In provinces where the tort of invasion of privacy has been legislated, a further form of liability may arise. Invasion of privacy occurs if surveillance is conducted by a trespass to another's vehicle if such action is taken without "claim of right." Such legislation exists in the provinces of British Columbia, Saskatchewan, Manitoba, Newfoundland and soon New Brunswick. In a case from British Columbia, a wife authorized the use of a tracking device by a private investigator on her vehicle to assist in the surveillance of her husband. The court found that the use of the device did not breach British Columbia's privacy legislation because the wife authorized its use and because the private investigator acted with due circumspection.
Defense of Custom and Belief
Some justifications for the use of tracking devices that have been raised are that the device was attached to the subject's vehicle when the vehicle was in a public place and that everyone in the industry is doing it. With regards to the first issue, while falling outside the offence of trespass to property, the location where the device is installed does not bring it outside the realm of a criminal mischief or a trespass to chattel allegation. The second issue was addressed in another case from British Columbia. In this case two private investigators were charged with criminal trespass by night. Both claimed that such practices were commonly undertaken by private investigators involved in divorce investigations. The court, however, rejected this defence and held that the mistake was one of law, not of fact, and the intent lay in the fact that they deliberately did those things which were forbidden under the Criminal Code.
Business Practices
One agency owner reported a situation wherein he was contacted by his client, an insurance company, and informed that the insured had located a tracking device on his vehicle. The insurance company advised the insured that they had not authorized the installation of the device and accordingly asked the agency owner for an explanation. After questioning his employee investigator, the agency owner learned that the employee investigator had planted the device on the vehicle without authorization from the private investigation agency or the insurance company. The agency owner, in order to retain his client, terminated the employee investigator.
This story raises a couple of important issues. First, authorization is always required before a tracking device can legally be used. The authorization can come from the property owner or the courts. Second, as agency law often applies to the relationship between a private investigation agency and their client, any illegal or unauthorized action of a private investigation agency may result in liability to their client. Accordingly, clients, such as insurance companies, must always be apprised if such devices are going to be used. In addition to the legal concerns, insurance companies may also frown upon such practices as it may lead to negative publicity. Therefore, while tracking devices have obvious benefits, the use of such devices may result in a loss of business for both the client and the private investigation agency alike.
DisclaimerThe information contained in this web page is provided as a public service, not as legal advice. The essential difference between legal advice and legal information is that legal advice is tailored to the specific facts and circumstances of a particular client. Legal information is not so tailored and, therefore, can not be a substitute for the advice of competent legal counsel. Another important reason for raising this distinction is because each province has different laws, and what may be the best of advice in one province may be completely wrong in another. Furthermore, laws change frequently and information that is only weeks or months old may already be out of date. Telematics-Online Research & Investigation and the quoted source do not make any claims, promises or guarantees about the accuracy, completeness or adequacy of this information. If you require legal advice, please retain a lawyer.
(ex).jpg)
