How to Use Pretext to Uncover Information from Subjects and Witnesses
If you are feeling the pain of trying to collect on a debt, a child support order or a court ordered monetary award, your problems are about to get worse.
If you’re trying to locate a missing friend, family member or birth parent in an adoption situation, or if you’re trying to find a person who skipped out owing you money, it’s about to get even harder. If you have been a victim of fraud or crime, or are in a business that needs to be protected from crime, such as theft or fraud, you had better put on your suit of amour; it’s going to become a bigger battle than you ever anticipated. If you are charged with a criminal offence, or have been wrongfully convicted, it may surprise you to know that those in your defense team are gradually having their tools taken away from them. Maybe your biggest concern is that your monthly insurance premiums are increasing every year to the point of running out of control.
Welcome to the introduction of Bill C-299, which is seeking to ban the method of pretext (or false pretence) and/or deception used by private investigators and other related industries. Alberta Conservative James Rajotte seeks to make amendments to the Criminal Code as it relates to pretext (or false pretence) with his Bill C-299. If passed, the bill would make it illegal to obtain, or counsel others to obtain personal information on false pretence, “or” by fraud or to sell or disclose such information obtained by similar means. Also added to the criminal offence of “personation with intent,” is fraudulent impersonation with intent to obtain any record containing personal information about a third party.
The private sector and in particular Private Investigators do not pretext for a “fraudulent means.” They do, in fact, pretext for a lawful means, as they are allowed to do so in the acts and regulations that govern them. Rajotte’s bill also seeks to make amendments to the Competition Act and most importantly the Canada Evidence Act. This would ensure that any evidence obtained by false pretence would be not admissible in court.
Joe L. Lai, an associate in the Business Law Department of the Toronto law firm, Fraser Milner Casgrain, wrote an article to Lawyers Weekly about Bill C-299 in November 2006. In his article he stated that pretexting could be regarded as being “morally offensive,” and confirmed that buyers of personal information include law firms, financial institutions, collection agencies, private investigation firms and research companies. His interpretation is that the Bill speaks to Canada’s perception of pretexting as morally blameworthy and offensive to the public and societal sensibilities, thus requiring either deterrence or compensation for victims.
p>One would wonder if Mr. Lai has ever himself been a victim – a victim of crime, or of being unable to collect a debt, a judgment, or a child support order? Does he know the frustration of being wrongfully charged or accused, and being unable to find or subpoena a sensitive witness, because serving the subpoena can not be done discreetly without the use of lawful pretext. Will the clients of his law firm and the legal community ultimately feel the same frustrations?
The concerns over pretext and private investigators stem from a recent Hewlett Packard scandal in the U.S., which continues to cause controversy. To determine the source of information leaks which were finding their way to the media, Hewlett Packard hired private investigators to obtain confidential information on journalists, and employees and board members in their company, One of the most controversial issues in this case is the use of pretext and impersonation to obtain the phone records and calling data of various people suspected of the board room leaks. The private investigators have been indicted on felony counts of identity theft, conspiracy, unlawfully accessing computer data, and fraudulently obtaining phone records. All of them are now facing penalties that could involve imprisonment.
The backwash from this scandal has now found its way into Canada in the form of Bill C-299. The bill, if passed, will make any evidence that was obtained by pretext inadmissible in court. The passing of the pretext bill in its current form could cause civil unrest to the point that everyone will feel its effects – not just private investigators, but all those in the private sector who fight crime and collect our debts. Even the media could be affected. The general public will discover a justice system and due process that will fail them.
With respect to the HP Scandal it might be asked, what lawful methods could have been used by Hewlett Packard to investigate their boardroom leaks? What methods or laws are in place that would allow directors of public companies to find the source of their information leaks – leaks that affect the price of stock and could ultimately lead to insider trading, thus prejudicing other public shareholders?
Can owners of public companies quickly apply for court orders to obtain confidential information on individuals who are suspected of leaks? The answer is no at least not quickly. Was there a legal avenue in place to obtain these phone records.? The law, as it relates to impersonation being used by private investigators, appears to be very confusing. Many lawyers who blog on the internet argue that it will be difficult to demonstrate criminal intent and actually convict Pi’s in court in the U.S.
What is Pretext and How is it Used Today?
Public law enforcement agencies use pretext or deception every single day to catch criminals. Working undercover posing as someone they are not, making phone calls to the homes of suspect of criminals, pretending to deliver a package so they can determine if an accused person is at home, so that a warrant can be executed, setting up sting operations where a police officer poses as someone other than a police officer. Public records speak of the RCMP going through a suspect’s garbage, without a warrant, leading to the arrest of criminals. Pretext, deception and trickery are essential tools used in law enforcement. What would happen if pretext, deception and undercover operations became illegal in public law enforcement? Suppose an undercover police officer called the residence of a suspected criminal, pretending he was a friend of a suspect, or perhaps saying he was with a delivery company trying to deliver a parcel? As a result of that pretext, he could perhaps obtain a personal cell phone number and other information about the wanted criminal, with the intent of eventually making an arrest based on the information he obtained.
What would happen if the above situation was regarded as an illegal pretext – because the officer impersonated someone to get the information he needed? The result would be that the criminal could not be arrested, charged or convicted because pretext was considered illegal and not admissible in a court. If we were to imagine a world where public law enforcement could not use pretext, trickery, disguises, undercover or deception, it would be a world of crime and chaos out of control. All aspects of our safety could be jeopardized. And what about the private sector using pretext? Private investigators, bill collectors, private bailiffs all use these methods to obtain the information they need.
There is a huge difference between using impersonation and pretext. Yet the scandal has caused law makers and regulators to blend the two into legislation. Any journalist who has ever investigated consumer fraud has probably, in one form or another, used pretext or deception to obtain information. Journalists and the media have been known to use pretext, trickery or even to set up sting operations to catch would be criminals. We read stories all the time of the paparazzi (mostly in the United States) going through the home garbage of movie stars trying to find any dirt they can, to sell a story to the media. And what about the recent NBC network sting operations to catch pedophiles via chat rooms, setting up a woman to pose as an under-aged girl? For years the paparazzi in both Canada and the United States have been vicious in their tactics to obtain any dirt that will sell on celebrities. Going though garbage, surveillance, illegal telephone taps are just of the few tactics we read how they invade privacy. Yet the closest thing to a scandal has been an investigation where it was suggested that the death of Princess Diana might have been caused by the paparazzi.
We watch news reports where reporters and journalists work undercover posing as a customer trying to buy a gun off the street, or a stolen ar, or maybe to catch a car salesman known for rolling back mileage odometers on used cars. They lie and say they are someone else. They try and catch the person doing something wrong, under a sting, ruse or pretext and report it to the public.
Like the mainstream media there are ethical members and there are unethical members who do not follow laws or have any code of ethic. While most Private investigators in Canada would not condone impersonation as means to obtain information, they would very likely condone the use of lawful pretext because their governing legislation allows them to use it. Private investigators have been using pretext and deception to catch criminals right back to the days of Sherlock Holmes. Disguises, deception, trickery and lawful pretext have always been common and essential methods of investigation.
It’s not just Private investigators who use pretext as an important tool, but also process servers, who serve legal documents of the court. Private bailiffs make pretext telephone calls at the homes of debtors, to obtain work phone numbers in order to recover vehicles and equipment.
These pretexts usually have the objective of trying to find out a person’s personal information such as a phone number, a work number or a place of employment. It could be to serve a document, collect a debt, recover property, enforce a court order or judgment or to bring an important issue to the public’s attention as in the case of a reporter or journalist. A Private investigator or Process Server might call your house saying they are a delivery company, an old friend or employer, they may act as a marketing survey company all trying to get personal information. A few days later you’re served with legal papers (such as a divorce petition, a support order, or a lawsuit). You may find that your vehicle that you owed payments on was seized right out of the parking lot of your home or your place of work. All as a result of the personal information you gave away under some form of trickery or pretext. Pretext in the private sector is now under scrutiny to the point that any kind of pretext or deception whatsoever could be come completely illegal and not admissible in court.
Pretext, Impersonation & The Law
In most Provinces and States, licensed private investigators have been allowed to use lawful pretext, and the bodies of government that regulate private investigators are perfectly aware that lawful pretext is in a part of the practice. We know this because laws or regulations continue to exist that specifically govern how private investigators may use pretext. For example, a private investigator is not allowed to represent him or herself as a licensed profession, policeman, fireman, ambulance attendant, government worker, etc,. The fact that pretext is regulated is a clear indication that governments of the world recognize that pretext exists and is allowed to be used lawfully. It is an essential tool for investigation. To ask why we need Private investigators when we have the police is the same as asking why we need private security guards, private bailiffs, collectors, and insurance adjusters. Without them our protection would be compromised to the point that crime would run rampant. We would be unable to properly complete various processes in our judicial system, be it civil or criminal, without the private sector. In order to adequately determine what a private investigator does, the public first has to have remove the stereotype that PI’s battle everyday.
The most common stereotype is that private investigators are one or two-man operations doing nothing but infidelity divorce investigations, and following cheating spouses. With the changed divorce laws, there is no longer a requirement to prove adultery. The public needs to be aware that this area of investigation is very small and has only been specialized by a small percentage of investigation firms. Fraud is completely out of control to the point that most fraud units, be it municipal provincial or federal, are backlogged, some as much as a year. Victims of fraud in all aspects have felt the frustrations of trying to catch, prosecute and collect their losses from the criminals who have victimized them. Because of this, the private sector is more capable of combating fraud than public law enforcement. There are simply more in the private sector fighting fraud then in the police force. Certainly in the city of Toronto, for example, there are more private investigators (and in-house bank and insurance fraud units) then the combined staff of the Toronto Police Fraud Unit and their Major Crime Units. People need to be reminded that there is a difference between unlicensed Information brokers who sell searches without any questions asked, than licensed PI agencies. It is unregulated information brokers that are destroying private sector and causing governments to close the door on lawful access to information. PI’s are licensed by government bodies. They have independent acts and regulations which govern what they can and can not do. They face fines or imprisonment for violating any legislation. It is a regulated profession. In most states and provinces the legislation is enforced by the police. A large number of private investigators are, in fact, themselves ex-police officers or ex-law enforcement of some kind. In Canada, this includes retired and ex-members of the Provincial Police forces, the RCMP and Municipal forces. After his retirement, William J. McCormack, one of Toronto’s most highly respected Toronto Police chiefs, formed an alliance as ‘senior consultant and advisor to MKD International, a Toronto private investigation and security firm.
The biggest client of the private Investigation profession is the insurance industry who continue to lose the battle on insurance fraud. Billions of dollars are spent by insurance companies hiring private investigators who conduct insurance fraud investigations. Virtually all insurance companies have claim departments that are currently hiring private Investigation firms. This includes all aspects of insurance: automotive, casualty, disability, corporate liability, property, marine, and surety, just to name a few.
If you were to spend a ‘day in the life’ with the majority of investigation firms in North America, it would be instantly discovered that 60% or more of investigation firms are working for insurance companies, and/or their legal counsel, fighting fraud. This also includes claims relating to mortgage and bank fraud. The remaining percentage includes banks, trust companies and finance companies who hire PI’s in relation to fraud and collection. The legal community, (both criminal and civil) who seek litigation support, use private investigators in almost every area of law.
Lawyers, insurance adjusters and their claim departments would agree that private investigators are an important part of the process when it comes to investigating insurance fraud, or claim investigation and inquires in general. When Canada initially drafted its privacy legislation, The Personal Information Protection and Electronic Documents Act (PIPEDA), it initially left behind a number of organizations in the private sector, and did not give them “Investigative Body Status”. It was initially interpreted that anyone who did not have “Investigative Body Status” could not investigate someone without their consent. This interpretation included private investigators and insurance adjusters.
Imagine a private investigator doing an insurance disability investigation for an insurance company that suspected one of their claimants was faking an injury. The legislation, in its initial stages, could have been interpreted to state that the private investigator must ask the claimant’s permission to investigate, follow and video tape the cheating claimant. It’s possible the PI would have had to disclose the report to the person investigated, if requested. Even insurance adjusters were affected. Imagine an insurance adjuster doing a suspicious fire investigation not being able to investigate a suspect, unless he told the suspect in advance and asked his permission to investigate him, and then later having to reveal his report to the suspect, if asked. Thousands of dollars were spent by various associations to amend the legislation to give private investigators and other bodies “Investigative Body Status.” In the spring of 2004, various investigative and insurance associations successfully managed to get changes in the legislation. Licensed Private investigators who were good standing members of professional PI associations were allowed to investigate without consent and not disclose their reports, with various exceptions. While all of the exceptions can be listed by viewing a copy PPIEDA, in layman’s terms the most important ones were:
- To collect a debt
- Investigating a Breech of an Agreement or Contravention of Law
- To comply with a subpoena or warrant issued or an order of the court
- Working on behalf of a lawyer
To understand the importance of the private Investigation industry, here are some examples of the work conducted by PIs. Listed below are also some of the problems with the current privacy legislation, and the up-coming proposed pretext legislation:
Since the very beginning, private investigators have been used not only to find birth parents but to reunite families. PPIEDA has (neglected, failed or properly defined) to allow an adoption investigation as an exception. One could easily conclude that adoption investigation (trying to find birth parents, missing family members etc.,) is an invasion privacy and a violation of the act. PI’s use pretext as means to prevent alerting other family members, during a search for birth parents. For example, a PI might pretext saying he is completing a family tree or a missing heir inquiry. Pretext legislation could make it difficult for PI’s to locate family members discreetly for their clients.
Corporations hire private investigation firms to conduct pre-employment background investigation. Private investigators are not allowed to report on a person’s criminal background. They have no access to criminal background information without a person’s consent. To obtain this information from police source would be illegal. Employers must have a potential applicant’s complete consent for background investigation which involves a criminal record check. There is continued controversy as to whether an employer is even allowed to ask for a criminal record check. Certainly, if an employer suspects he has a criminal working for him, it is unlawful to conduct a criminal search after the criminal employee has been hired. Articles have been written which say that we may see the day when employers are no longer allowed to ask for Social Insurance or Social Security Numbers.
Millions of individuals have child support orders they can’t collect. Their failure to collect on child support orders is primarily as result of the debtor not having assets in his/her name. The debtors may work for cash in a cash profession; they drive with a suspended license, and they don’t have a bank account in their name. They are, from a collection stand-point, untouchable. Trying to find collectible assets is an investigative task. How can we collect from a person who is working for cash as part of the underground economy? A private investigator hired by a recipient might use a very expensive surveillance, following an individual into work – which can cost a single parent upwards of$65.00 an hour and $0.65 per kilometer, with average retainer requests usually in the thousands of dollars. Alternatively, a private investigator, under pretext, might call the residence of a dead-beat parent (or someone who knows the dead-beat parent). The pretext might be that of doing a marketing survey, trying to get a work telephone number. Once the work phone number is obtained, inexpensive inquiries can be made to confirm the place of employment in which the client can then contact the family responsibility office to issue garnishments. In less than an hour of pretext phone calls, a private investigator can inexpensively obtain the employment information of a dead beat parent. The current pretext proposals would define obtaining a work or home phone number as being a pretext to get “personal information” or in this case the place of employment. The way the information was obtained would be considered illegal and inadmissible in any family court proceeding. A garnishment could easily be appealed. This would leave only the method of expensive surveillance to investigate those working in a cash profession, as there is no public search that would identify this type of information.
Corporations hire private investigators
Corporations hire PIs on a regular basis to investigate theft, employee issues, collection, white collar crime, insider trading etc., PI’s often conduct background or due diligence investigations to ensure deals are safe and without surprises before they close.
Copyright, Trademark Industrial Design
It is a matter of media public record that major corporations like Gucci, Cartier, Rolex and Walt Disney have hired PIs to investigate infractions of their trademark, either directly or through their legal counsel. PIs investigate unauthorized manufacturers and distributors who unlawfully manufacture, sell and distribute these products. With the technological sophistication of scanners and photocopiers, virtually all industries can find themselves victims of piracy in some form. To investigate the culprits, private investigators will use trickery such as posing as a potential customer and video taping suspects. They may make pretext calls to the homes of suspects, trying to find work numbers as to where illegal items might be manufactured or distributed. PIs then work with court bailiffs to enforce orders and seize property.
Criminal Defense & The Wrongfully Accused
Someone charged with a criminal offense may require a PI to track down witnesses, take a statements, or set up a sting operation to add other accused persons to the criminal matter. Defense lawyers hire private investigators constantly to aid in defense trials. Defense investigations very often involve pretext in tracking down witnesses who themselves may be criminals, or by video taping, and sting operations. There are many documented cases where PIs have been the only salvation of a wrongfully accused person.
Copyright – Kevin D. Bousquet
The legal court case of Ferenczy vs. MCI Medical Clinics, a decision rendered in the Ontario Superior Court by Justice
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