Private investigators in Canada must be properly licensed in order to receive payment for their services, and usually for their evidence to be taken seriously. According to the Ontario Ministry of Community Safety and Correctional Services, evidence from private investigations can indeed be legally presented in court, so long as certain precautions are taken:
“Private investigators may come across evidence that may be used in court, and should know how to collect and preserve evidence while preventing the evidence from becoming contaminated. They should also know how to present admissible evidence in court. The six core steps for containing evidence are collect, secure, preserve, identify, ensure continuity, and log.“
Handling Evidence
It is vitally important that when any evidence arrives in court, it should have interacted with as few people as possible. The evidence, in whatever form it takes, needs to be collected carefully and kept away from the public. Small items should normally be preserved in a plastic bag, named,initialedand dated, and entered into an official investigation report. The chain of custodymeaning the passage of such evidence from person to person, needs to be documented correctly.
The Alberta government considers the work of private investigators commonplace within the court systems:
“Private investigators may…gather information about defendants or witnesses in criminal and civil court cases [and] gather material or evidence for individuals in divorce or child custody cases.”
Private Investigators on the Witness Stand
In addition to supplying physical evidence for a court case, a private investigator may also be called upon as a witness for a case they were investigating. If an investigator receives a subpoena to testify in court, his or her records are of the utmost importance. By law, it is required that any private investigator on the witness stand not be allowed to rely completely on the notes that he or she took while investigating any case. The records may be referred to, however, it is not allowed that an investigator read directly from a notebook. For this reason, it is important not only that careful records are kept, but also that a subpoenaed private investigator take the time to review such notes ahead of time. The role of a witness is to recall events by memory, and as such, investigation notes are not acceptable as evidence.
Video Surveillance in Court
In most cases, the collection and use of video footage of an individual or several individuals is unlawful without the subject’s consent. For any such video footage to be considered as evidence in a Canadian court, the video must have been taken as part of a very specific investigation, not simply on a whim or as part of an unrelated personal investigation.
The Canadian Privacy Commissioner published a set of guidelines for private investigators nationwide to address the use of covert video surveillance as evidence in court. Of these, it is legally mandated that non-consented video footage of an individual maynotbe disclosed except in the case that “the collection is for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province.”
Evidence collected by licensed Canadian private investigators can, and often does, make all the difference in court, both to prosecutors and defendants.
