Is Surveillance by a Private Investigator Considered Criminal Harassment in Canada?

In this blog, we explore section 264 of the Canadian Criminal Code having to do with criminal harassment, which is Canada’s anti-stalking law. We’ll help explore whether surveillance, which is a common approach to evidence gathering by private investigators, is considered criminal harassment under the Code and how thin the line might be between surveillance and criminal harassment.

What is Surveillance?

Surveillance is an important investigative tool. Surveillance is used to investigate matters such as spousal infidelity, resolve child custody battles in domestic cases, uncover corporate thefts or fraud in criminal investigations, assist in resolving insurance claims, and collect evidence to support civil court cases. Surveillance is performed regularly by many field investigators and, when done properly, often uncovers an abundance of important facts and essential details. The information learned through direct observation is often unavailable through any other means. Read more about surveillance here.

Defining Criminal Harassment

Section 264 of the Canadian Criminal Code, which is Canada’s anti-stalking law, defines criminal harassment as repeatedly following, communicating with, watching or threatening another person, either directly or indirectly, causing that person to reasonably fear for their safety or the safety of others known to them. You can read the entire statute by clicking here.

What type of conduct qualifies as harassment?

The Canadian Criminal Code, Section 264, is the Canada’s anti-stalking statute, which is called Criminal Harassment. Sub-section (1) of the statute defines the offence, while subsection (2) outlines the type of behaviour which qualifies as criminal harassment. Sub-section (2) considers the following to be harassing behaviour in Canada:

What type of conduct will qualify as harassment?

In section 264, subsection 2, the Code outlines what it considers to be harassing behaviour as follows:

(a) Repeatedly following the other person or anyone known to them

(b) Repeatedly communicating with the other person or anyone known to them

(c) Besetting or watching the dwelling, workplace, or place where the other person resides or happens to be

(d) Engaging in threatening conduct directed at the other person or any member of their family

C.C.C. Section 264(2)

When does criminal harassment occur?

While it might be easy to point to some of the above elements as harassing behaviour, keep in mind that the statute explains the actual offence of criminal harassment occurs when that individual [an accused] is acting against another person [the victim] in such a manner…

“…that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.” C.C.C. Section 264(1)

It’s not enough to follow a person or watch their dwelling or workplace. Rather, the person must be aware of the activity and be genuinely concerned. What should be clear to the reader is that in a case of criminal harassment, the victim fears for their safety or for the safety of someone they know, such as a friend or relative.

Most private investigators are well-versed in Canadian law and take all necessary precautions to operate strictly within the boundary of the law when conducting surveillance. They understand that surveillance is a tool used to gather evidence and to provide clients and their legal representatives with important information. They should be adept at understanding the difference between lawful surveillance and criminal harassment. Maintaining ethical practices while adhering to the law is paramount, whether the investigation involves a domestic, corporate, or criminal matter.

To be sure that legitimate surveillance remains discreet and confidential, private investigators should follow certain guidelines when performing surveillance, some of which are included below.

1. Clearly define the purpose and scope of the surveillance.

Private investigators should have a well-defined and legitimate purpose for conducting surveillance. They should also establish the specific boundaries of the investigation to prevent engaging in overly intrusive or unnecessary actions.
2. Use lawful methods.

Private investigators must ensure that they employ only lawful methods when carrying out surveillance. This includes respecting privacy rights, avoiding trespassing on private property, and not using illegal means to obtain information.
3. Maintain confidentiality.

It is essential for private investigators to maintain the confidentiality of the information gathered during surveillance. Sharing or disclosing such information without proper authorization could lead to legal consequences and may also result in crossing the line into criminal harassment.
4. Document all actions.

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5. Identify specific questions to be answered.

Surveillance should be geared towards answering specific questions relevant to a matter under investigation. Surveillance should be geared towards achieving a specific outcome as opposed to just collecting any information available.

Private Investigators Are Credible Sources of Evidence

“If a subject is alert, the action must stop. To pursue a suspicious or alert subject is unprofessional and unproductive. This would no longer be considered surveillance.”

As private investigators must remain credible sources of evidence, any unethical practice could potentially cross the line into criminal harassment, which could lead to significant legal jeopardy. It is, therefore, imperative for private investigators to maintain ethical practices while adhering to the law, whether the investigation involves a domestic, corporate, or criminal matter. This condition is absolute and no private investigator should ever attempt to do anything beyond what is necessary and legally defensible.

It should be obvious even to the casual observer that the purpose of surveillance is to collect evidence; not to alert a subject as to the fact they are under investigation. While evidence collected will always travel through the necessary legal channels once the investigation is finished, properly conducted surveillance should never alert a subject or cause anyone to become fearful in any way.

That’s one of the reasons an important part of surveillance training for private investigators is geared towards mastering an ability to remain low-key, unobserved, and undetected. A private investigator should learn to see without being seen and to hear without being heard. Learning to be discreet is the first — and arguably the most important – skill professional private investigators must learn.

Surveillance Training for Private Investigators Should Include These Basics

1. Legal and ethical considerations

Private investigators should be well-versed in the applicable laws and regulations governing surveillance activities, as well as the ethical obligations they must adhere to.

2. Privacy rights

A thorough understanding of privacy rights and the limits of surveillance is crucial for private investigators to respect the rights of the individuals being monitored.

3. Surveillance techniques

Training in various standard and advanced surveillance techniques can help private investigators carry out their tasks effectively, lawfully, and efficiently.

4. Excellent communication skills

There are times private investigators may need to communicate with others during the investigation. This situation could include anything from making a routine inquiry to diverting area attention.

To be sure, there is always a risk a particular surveillance might take an unexpected turn. Yet, it’s important to understand the threshold between surveillance and criminal harassment. Criminal harassment occurs when an individual, without lawful authority, knowingly harasses another person or recklessly causes them to fear for their safety or the safety of someone they know. The victim’s fear arises from becoming aware they are being watched. As surveillance is by definition discreet and secretive and aimed at collecting evidence without the subject or others being aware, it’s unlikely to be considered harassment if it’s done for legitimate purposes. By the same logic, it’s highly unlikely that any action bordering on criminal harassment could ever be considered part of professional surveillance.

“If a subject is alert, the action must stop. To pursue a suspicious or alert subject is unprofessional and unproductive. This would no longer be considered surveillance.”

A private investigator who believes a subject is aware of surveillance should never persist in any conduct leading to added concern. If a subject is alert, the action must stop. To pursue a suspicious or alert subject is unprofessional and unproductive. This would no longer be considered surveillance.

Private investigators understand the distinction between lawful surveillance and criminal harassment, ensuring the law is respected throughout the investigation. By employing professional private investigators who understand Canadian law, clients can trust that they will receive accurate information through legal and ethical means. Experienced private investigators conducting surveillance are often able to assist clients to obtain swift and efficient access to justice. As a result, it should be clear that the line between surveillance and criminal harassment is very wide indeed.

Edward Franco is a second-generation private investigator currently performing a dual role consisting of active private investigation with Franco Investigation Services Ltd. and academic development with the Canadian School of Private Investigation & Security Ltd. Edward handles a wide range of investigations including corporate and internal fraud, undercover and criminal investigations, domestic and background investigations, as well as insurance and disability claims.