CIVIL AND CRIMINALLIABILITY
OF PRIVATE INVESTIGATORS
Michael J. Hewitt, B.Comm., J.D., Q.Arb
www.singleton.com
LIABILITY GENERALLY
Criminal and Civil Liability

Offences (statutes) vs causes of action
(common law)

Sources of allegations: Police, complainants and
crown vs clients and targets

Standards: Beyond a reasonable doubt vs balance
of probabilities
CRIMINAL AND REGULATORY
LIABILITY

Criminal Code of Canada

Canada’s regulatory statutes

BC’s regulatory statutes
CRIMINAL LIABILITY

Assault
– same laws apply to everybody
- citizen’s arrest powers only, s.494 of
Criminal Code
- self-defence and defence of property
- prevent a breach of the peace
CRIMINAL LIABILITY
Search and seizure
– PIs limited to rights of a private citizen
– Charter applies only if agent of the state
– Consent to search must be informed
Interception of private communications, and
possession of equipment: CCC applies
CRIMINAL LIABILITY
Potential offences related to property and
interaction with targets and others
 Break and enter, trespass at night
 Fraud
 Theft
 Possession of property obtained by
crime
 Threatening and intimidation
CIVIL LIABILITY
 Traditional claims:
 wrongful arrest
 assault
 malicious prosecution
 conversion/ trespass to property

Newer claim
 Negligent investigation
CIVIL LIABILITY
Wrongful Arrest
False arrest- If the arrest is not lawful and valid, the party responsible for
the arrest will be liable for false arrest or false imprisonment, and if
force is used, will also be liable for assault and battery.
False imprisonment – When the liberty of a person has been restrained
against his or her will without authority of law. If someone is improperly
detained, it is immaterial however little the force, if any, that is used in
connection with the detention.
CIVIL LIABILITY
Assault and battery
Assault – “An assault is committed when a defendant creates in another
person an apprehension of imminent battery, with the intention of
creating such apprehension, or of committing a battery.”
Battery – “force must actually be applied by the defendant to the plaintiff by
some form of direct contact. This may be done in such a manner that
the plaintiff is unaware in advance that he will be harmed. The degree
of force that is applied in such ways by the defendant to the plaintiff
need not be substantial.”
CIVIL LIABILITY
Malicious Prosecution
“an abuse of process by the court, by wrongfully
setting the law in motion on a criminal
charge.”
CIVIL LIABILITY
Trespass to land
“Trespass to land consists of entering upon the
land of another without lawful justification, or
placing, throwing, or erecting some material
object thereon without the legal right to do so.
To constitute trespass the defendant must in
some direct way interfere with the land
possessed by the plaintiff.”
CIVIL LIABILITY



Personal property – conversion and
trespass to property
wrongful act involving personal property
Strict liability – establish only that the
defendant was linked to the exercise of
control over the goods in a manner
inconsistent with the rights of the true
owner.
CIVIL LIABILITY
Negligent Investigation

New basis to sue (2007)

Established by Supreme Court of Canada
Hill v. Hamilton-Wentworth Regional
Police Services Board
NEGLIGENCE: EVOLUTION OF
PROFESSIONAL LIABILITY
•
Physicians were sorted out first
•
Construction professionals next
•
Accountants and lawyers more recent
•
Now the investigators!
Source: celebrity plastic surgery mistakes…..
LIABILITY OF MEDICAL PROFESSIONALS
LIABILITY OF MEDICAL
PROFESSIONALS
MacDonald v. York County Hospital (1976,
S.C.C.)
•Failure to consult with a specialist could
constitute negligent treatment
Allan v. New Mount Sinai Hospital (1980,
Ontario)
•Generally, any surgical operation is a battery,
unless the patient has consented to it
LIABILITY OF MEDICAL
PROFESSIONALS
Reibl v. Hughes (1980, S.C.C.)
• Unless there has been
misrepresentation or fraud to secure
consent to the treatment, a failure to
disclose the attendant risks of a surgical
procedure, however serious, is
negligence
CONSTRUCTION PROFESSIONALS’
LIABILITY
CONSTRUCTION PROFESSIONALS’
LIABILITY
THE ERA OF THE CONSTRUCTION
PROFESSIONAL (1980’s to 1990’s)
British Columbia Rail Ltd. v. Canadian Pacific
Consulting Services Ltd. (1990, B.C.)
•It is an implied term of the design contract that the
design be reasonably fit for its purpose
THE ERA OF THE CONSTRUCTION
PROFESSIONAL (1980’s to 1990’s)
Edgeworth Construction Ltd. v. N.D. Lea & Associates Ltd.
(1990, BC)
If a design engineering firm supplies faulty design
specifications, it may be liable in negligent misrepresentation to
users of the design even though there is no direct contractual
relationship between the two parties
THE ERA OF THE CONSTRUCTION
PROFESSIONAL (1980’s to 1990’s)
Winnipeg Condominium Corp. No. 36 v. Bird Construction Co.
(1995), 121 D.L.R. (4th) 193 (S.C.C.)
A general contractor is liable to subsequent owners of a
building for the cost of correcting dangerous defects caused by
the negligence of the contractor
LAWYERS’ LIABILITY
Central Trust Co. v. Rafuse (1986, S.C.C.)
Lawyers must have sufficient knowledge of the fundamental
issues or principles of law to enable them to perceive the need
to ascertain the law on relevant points
LAWYERS’ LIABILITY
Whittingham v. Crease & Co. (1978, B.C. Trial Court)
Lawyers are liable to potential beneficiaries if they fail to
properly supervise and advise the testator regarding the
execution of a will
LEGAL ELEMENTS OF A
NEGLIGENCE CLAIM

Duty of care is owed

Standard of care is breached

Plaintiff suffered damage as a result
NEGLIGENT INVESTIGATION
Two main issues in any claim:

Claims available against whom? (duty
of care)

Liability for what type of conduct?
(standard of care)
STANDARD OF CARE IS
INFORMED BY:

Regulatory standards

Professional standards

Established practices

Opinions of expert witnesses
NEGLIGENT INVESTIGATION
The Hill Case

Issue in Hill:
“Is police conduct during the investigation
or arrest subject to scrutiny under the law
of negligence?”
NEGLIGENT INVESTIGATION
The Hill Case
Answer given in Hill:
Police owe a duty of care in negligence to
suspects being investigated.
NEGLIGENT INVESTIGATION
The Hill Case
Important qualifications in Hill related to
standard of care:
 Standard:
how a reasonable officer in
like circumstances would have acted
 Perfection
is not the standard
NEGLIGENT INVESTIGATION
The Hill Case
Standard of Care:

Reasonable police officer in all the
circumstances

Recognition given to discretion inherent in
police investigation

Standard is not perfection, optimum
performance or hindsight
NEGLIGENT INVESTIGATION
The Hill Case
Result in Hill:

Police owed a duty of care to Hill

No breach of the standard of care

“Not good police practices” – did not fall
below the standard
POST- HILL CASES
NEGLIGENT INVESTIGATION
Correia v. Canac (Ontario 2008)
 P.I. investigated employee thefts
 Employee dismissed, then arrested
 Employee was innocent (mistaken identity)
 Employee’s claim against P.I. may proceed to trial
POST- HILL CASES
NEGLIGENT INVESTIGATION

Avery v. Canada (Attorney General), [2013] N.B.J. No. 149

PI investigated the sale of copies of copyrighted works owned
by Microsoft.
– Plaintiff alleged that it morally wrong for RCMP to rely on
Microsoft corporation for information and advice.
– Hill applied to show that a police officer is not required to
exahust all avenues of investigation before concluding
reasonable and probable grounds for arrest.
RISK MANAGEMENT
DIRECTED TO THIS ISSUE
Standard





of care
Establishing practices
Following established practices
Logical investigation
Proportionate action
Review processes
Liability
insurance
Limitation
of liability and indemnity clauses in contracts
WHAT ARE THE STANDARDS
OF THE PI PROFESSION?

What will the profession formally adopt?

What will expert witnesses attach
themselves to?
What will courts accept as standards
(as opposed to best practice)?

WHAT ARE THE STANDARDS
OF THE PI PROFESSION?


Code of Ethics and Professional
Conduct of the PIABC
Examples:
– Unlawful activity
– Unethical practice
– Confidentiality
– Conflict of interest
WHAT ARE THE STANDARDS
OF THE PI PROFESSION?


Code of Ethics and Professional
Conduct of the PIABC
Examples:
– Information use for personal advantage
– Competence
– Deceptive information
CURRENT TOPICS
PRIVATE INVESTIGATORS’
LIABILITY
ASIS GUIDELINES

Will they become “standards of the profession”?

What will “expert” witnesses say about them?

Will a BC court recognize them as standards in the
profession?
CURRENT TOPICS
PRIVATE INVESTIGATORS’
LIABILITY
LICENCED AND UNLICENCED PRIVATE
INVESTIGATORS

How is this distinction viewed by the courts?

How would it affect the individual:
– As a witness for a client?
– As a defendant in a lawsuit?
CURRENT TOPICS
PRIVATE INVESTIGATORS’
LIABILITY
AGENT OF THE STATE
Aimed at protecting the right to silence
– Limit the use of the coercive power of the state to force selfincrimination
– Not to prevent self-incrimination
Application in civil vs. criminal cases – same but
different
CURRENT TOPICS
PRIVATE INVESTIGATORS’
LIABILITY
AGENT OF THE STATE
Test: would the exchange between the accused and
the informer have taken place in the form and manner in
which it did take place but for the intervention of the
state and its agents
CURRENT TOPICS
PRIVATE INVESTIGATORS’
LIABILITY
AGENT OF THE STATE
-
Was the person in fact an agent of the state?
-
Did the agent elicit evidence?
- Nature of the exchange – interrogation
- Exploitation of special characteristics of the relationship
- Trust, vulnerability and manipulation
CURRENT TOPICS
PRIVATE INVESTIGATORS’
LIABILITY
PRE-TEXTING
Few reported cases comment either way about it
Bill C-299 – to amend the Criminal Code, s.362
-
-
Obtaining, selling or disclosing personal information
by a false pretence or fraud
Added requirement – for use to commit a fraud:
Hansard 2007