Surveillance. The word conjures up images of a shady character waiting in a parked vehicle with a telephoto lens. Or maybe you picture a police stakeout in an apartment with Styrofoam cups of coffee and cigarette butts piling up on the windowsill.
For myself, I imagine spies, hidden in the fog, tailing individuals down menacing alleyways. It’s all very dramatic. But in a far less dramatic way, surveillance can be used in a routine civil lawsuit.
For most people, the mere thought of being secretly watched is creepy. Is this surveillance even legal in a civil case? The short answer is yes. Surveillance often creates video evidence that is accepted by the courts. After all, the courts are all about getting at the truth.
Surveillance is commonly used in personal-injury lawsuits. It’s easy to see why: if the plaintiff alleges serious injuries but is bungee jumping or playing hockey, the courts might find video footage of these activities relevant.
But surveillance can be used in any civil case. For example, it could come into play in a family custody case if one parent accuses the other parent of misconduct. Here’s another example: if a plaintiff in a wrongful-dismissal case claims that he or she has been out of work since being fired but is caught on camera secretly working on a construction site, that surveillance might be helpful for the court. The bottom line is that surveillance is an investigative tool that can help the court make its ruling, whatever case it might be.
So who are these people secretly filming others?
Conducting surveillance is done by what’s called private investigators. In fact, it’s a regulated profession. In order to be a private investigator, you need to be licensed by the provincial government. The Registrar of Security Services is responsible for licensing private investigators, including other professions such as security guards, alarm installers, and locksmiths. Investigators must go through the application process, background checks, and training before qualifying.
To bust the myths about private investigators, I reached out to Mark Kusic. He runs Kusic and Kusic Private Investigators Ltd., a company that is made up of a team of investigators with a variety of backgrounds. Many of Kusic’s investigators are former police officers, insurance-company representatives, lawyers, and even paparazzi.
So where are private investigators allowed to conduct surveillance?
According to Kusic, private investigators have no more access than anyone else. So this might mean joining a drop-in fitness class at the community centre. It might include strolling in the mall. In other words, any place that is open to the public is open to the private investigator. If this seems quite broad, that’s because it is. It’s an unsettling thought for some. That may be why the public may have a poor perception of the private investigator.
Kusic understands the stigma about the profession and was eager to meet it head-on. He is quick to make the distinction between what private investigators get away with in the U.S. and elsewhere. In Canada and in B.C., Kusic says he believes there are much higher standards. These standards restrict private investigators in ways that try to address the public’s concerns.
Private investigators in B.C. must follow their regulatory body’s ethical code of conduct. One important requirement is that they must comply with all laws. That includes privacy laws. On top of that, they must act with honesty and integrity. That means they aren’t lying or misleading anyone to get access to places. All of this goes against the idea that investigators are sleazy characters who will do whatever it takes just to “catch” someone on video.
In addition to their ethical code of conduct, investigators can be further restricted in what they can do because of their client. For example, Kusic’s firm has corporate clients that have their own surveillance policies. These policies can be more restrictive than the regulatory body’s requirements and designate off-limit areas.
For example, corporate clients may expressly instruct their investigators to stop when children or places of worship come into the picture.
Despite the limitations on private investigators, the idea of being secretly filmed can be unsettling for litigants. After all, everyone values their privacy to some degree. It’s common in a civil case for a party to assert their privacy rights to limit the other’s investigations. It might be about medical records or surveillance, but parties frequently argue on what investigations are fair game. The courts are often asked to rule on this issue. It is always a balancing act.
The courts take privacy concerns seriously. However, the courts also understand that having fair proceedings is important. Fairness often means giving the other party the chance to investigate. Sometimes privacy prevails. Other times, fairness wins out. These are two values that regularly come into conflict because our court system is such a public forum.
But at a certain point, some privacy must be given up for the sake of seeking and promoting justice in our court system.
The writer would like to thank Mark Kusic for his time. You can learn about his firm at www.kusic.ca/.
A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.