Libelous Questions

I recently conducted a series of interviews that were quite sensitive in nature. This used to be a common occurrence for me. Today, it is less so. The prevalence of small electronic recording devices has curtailed my willingness to conduct such interviews. My concern is that you never know where the recording will go, nor do you know how it will be used or edited. You have no knowledge of the motives, ethics, or interests of the people who may at some point possess the recording.

Libel happens when you publish or make public a statement that is untrue about someone. Any investigator may inquire about things that prove to be untrue during an interview. Ask yourself what might happen if a snippet of the interview is published and it contains questions about something that was later proven untrue. The concept of the libelous question is well established in law. Investigators may have a certain privilege to ask questions but, this won’t stop someone from suing you. The public disclosure of private facts that might be part of an interview also causes concern. What if the interview reveals information that is not of public concern, and the release of which would offends someone? Unlike libel, truth is not a defense for what may be seen as an invasion of privacy.

You can never be certain that a recording device is not present. As a private investigator, I cannot search people and confiscate their electronic devices. Private investigators do not have any control over the people they interview, nor do they usually have control over the physical surroundings in which the interview occurs. This alters the nature of the questions asked and how they are put to the interview subject.

An extreme example from the U.S.A is one where a defense lawyer sat down with a prospective client in San Juan, Puerto Rico and asked about the GPS bracelet required by as a condition of bail. The prospective client told the lawyer that, “They speak to me through that thing”.  He filed a motion at the Puerto Rico State Superior Court to have the device removed before he interviewed prospective client. During that motion, he learned that it could be used to eavesdrop on their conversation without the lawyer or prospective client knowing. (http://www.thecrimereport.org/news/inside-criminal-justice/2013-10-caution-your-gps-ankle-bracelet-is-listening) A recording knowingly made by the interview subject is not the only thing investigators need to consider.

This does not mean that every question will result in a libel action or that every room is bugged. It does mean that being dragged into an expensive libel action or media circus is something to consider before you start asking questions – especially ones that are sensitive.

OPSEC and Business Continuity

Operational Security (OPSEC) is the first consideration when preparing for adverse conditions.

In Canada, I always advise clients to read the Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)), Section 8  carefully before they take any action or commit to any preparations. The same applies to any individual preparations. Section 8 (1)(c) allows public officials carte blanche to loot your storehouse of supplies during a declared emergency. The provinces have similar legislation, for example, in Ontario it is the Emergency Management and Civil Protection Act, R.S.O. 1990, c.E.9. Politicians wrote all of these acts so that the government can always find a ‘legal’ way to do whatever it wants to do. This problem isn’t unique to Canada. During Hurricane Sandy, so called ‘First responders’ broke into Shore Army-Navy in Seaside Heights and looted it for supplies. During Hurricane Katrina, officials in New Orleans went further, and according to many accounts, committed armed robbery. In the face of armed troops or police, you will be helpless to prevent such looting. Of course, when government is the looter, they get a free pass from government lawyers and politicians.

Undertaking business continuity planning requires a very high degree of OPSEC given the propensity of governments, rioters, and criminals to take what they want. This leads to the question, what are the OPSEC requirements of business continuity planning?

I always advise that all business continuity (BC) assets be separated geographically, and in other ways, from the business they serve. Transfer ownership of BC assets to  obscure sole-purpose subsidiaries. For example, one entity owns the BC site while another buys the supplies and equipment. Yet another entity takes delivery of the supplies at an unrelated location. Execute all the BC planning and implementation on a strict need-to-know basis. The quick dissemination of the BC plan during an emergency must occur on a need-to-know basis. The employees only get the information they need to accomplish their part of the plan. Large-scale rehearsals should not reveal the actual location of the real BC site. To reveal the location of the BC site to all those involved in the rehearsal invites the looting of the site long before it is needed. Experience dictates the use a rented property in the general area of the real BC site for rehearsals.

These considerations are not irrational paranoia for any business located in an area subject to catastrophic disruptions such as riots, protests, natural disasters, or terrorist attack. Discontinuing business activity during such an upheaval is surrendering to these adverse forces.

Tim Horton’s & Investigative Internet Research

An article titled, Tim Hortons apologizes for blocking gay and lesbian news website by The Canadian Press on Friday, July 19, 2013 caught my attention. Tim Hortons is a popular Canadian coffee shop chain.

The online site of a popular paper that caters to the gay community was blocked by the coffee shop chain as “not appropriate for all ages viewing in a public environment.”. Once the outrage got going, Tim Hortons relented and changed its WiFi network policy.

What has all this got to do with Investigative Internet Research (IIR), you ask? Well, think about it. We often work while on the road and that means doing some aspects of IIR in places like coffee shops.

When you do IIR outside your normal work environment, different rules apply. How do you know what the WiFi network allows and what it doesn’t? How do you know if some things are censored and others are not? How do you know that your results are complete?

Now do you understand the dangers that doing this presents? I haven’t even mentioned the security issues.

Ontario Civil Court Searching

Ontario does not offer any way to search all the province’s civil courts from a central index. It is usually better to search the courts with jurisdiction over the subject’s residence and business addresses.

All civil matters are disposed of in the Superior Court, with the exception of family court matters that are within the jurisdiction of the Ontario Court of Justice. The Superior Court presides in 51 locations in Ontario, from Kenora in the Northwest to Cornwall in the East and from Cochrane in the Northeast to Windsor in the Southwest, an area well over 1 million square kilometres in size.

Crackstarter

If you haven’t heard, the Toronto Mayor, Rob Ford, supposedly appears in a video smoking crack. Gawker wants donations to buy the video for $200,000. Well this seems like a 80/20 situation. 80% of the damage done in 20% of the time that this goes on.

Here are some things to consider about this strange news item:

1. If they don’t get enough money to buy this video, then we don’t know if it really exists, but the damage is done.

2. If they buy it, then they are paying-off criminals. After all they are self-professed crack dealers. They are the gangsters that bring about most of the shootings and murders in Toronto.

3. If they buy it, they need to buy the device that recorded the video or we can’t tell if it was altered.

4. It will take a long time to analyze the video to determine if it is likely unaltered. If it is altered or fake, it doesn’t matter, the damage is done.

5. While the video may be unaltered, we might not ever know if it was a continuous recording or one that was recorded selectively for some desired effect.

6. No matter what happens, the damage is done — damage that goes far beyond one mayor or city. Welcome to the brave new journalism.

Cut-outs & Disinformation as a Search Strategy

We often use cut-outs to gather information in smaller communities as government clerks occasionally talk too much. Sometimes they deliberately tell the subject, or even local news media, that a search is underway. We never tell our agents why our client needs the information. We frequently request unrelated documents from the same government office to conceal why we are using the agent’s services. This disinformation also proves useful should our agent become too talkative while doing his job.

We often find it prudent to get an agent in another province to requisition federal government documents under the Access to Information Act as we are sometimes seen as adversarial towards government or bureaucratic interests. While we have never had a request denied, we have certainly been delayed because the department involved has guessed for whom we act.

CITIZEN’S ARREST AND SELF-DEFENCE ACT

The Citizen’s Arrest and Self-defence Act comes into full force on March 11, 2013. The act may be found at http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2012_9/FullText.html and some background on the act may be found at http://www.justice.gc.ca/eng/news-nouv/nr-cp/2012/doc_32762.html.

The Canada Gazette entry regarding the act coming into effect may be found at http://gazette.gc.ca/rp-pr/p2/2013/2013-02-13/html/si-tr5-eng.html.

Magnetic Declination Calculator

Some unusual research requests have come across the transom lately.

In a land dispute, a wilderness property was referred to using map coordinates and compass bearings. I found the correct map, but I needed to know the Magnetic Declination on the date of the compass bearings. Magnetic declination is the angle between magnetic North (the direction the north end of a compass needle points) and true north (the direction along the earth’s surface towards the geographic North Pole).

The Magnetic Declination Calculator for Canada may be found at http://geomag.nrcan.gc.ca/calc/mdcal-eng.php. While the U.S Magnetic Declination Calculator may be found at http://www.ngdc.noaa.gov/geomagmodels/struts/calcDeclination.

Canadian Aboriginal Information Sites

Recent events such as Attawapiskat and the Idle No More protests have made Aboriginal issues more prominent. The following sites represent some of the best government sites relating to Aboriginal life in Canada.

What CPIC Doesn’t Report

The Canadian Police Information Centre (CPIC) was created in 1966 as an information system for Canadian law enforcement agencies. It is the sole nationwide repository of criminal convictions in Canada. Many employers require a search of CPIC before hiring.

When a search is conducted for employment, you must understand what it doesn’t report.

A Canadian Police Criminal Record Check WILL NOT include:

  • Outstanding entries, such as charges and warrants, judicial orders, Peace Bonds, Probation and Prohibition Orders.
  • Absolute and Conditional Discharges.
  • Convictions where a pardon has been granted.
  • Convictions under provincial statutes.
  • Local Police contacts.
  • Ministry of Transportation information.
  • Family Court Restraining Orders.
  • Foreign information.
  • Charged and processed by other means such as Diversion.
  • Any reference to incidents involving mental health contact that did not result in a conviction.
  • Any information under the Youth Criminal Justice Act (YCJA ).

Pre-employment Criminal Record Checks

The Canadian Police Information Centre (CPIC) was created in 1966 as an information system for Canadian law enforcement agencies. It is the sole nationwide repository of criminal convictions in Canada. Many employers require a search of CPIC before hiring. However, this system is not foolproof.

Auditor-General reports going back to 2000 have criticized the CPIC system (see para. 7.86) regarding timely delivery of criminal record data.

The most recent Auditor-General report estimates that the RCMP takes an average of 14 months to update an existing English criminal record in CPIC. The French updates take an average of 36 months. The stated goal is updating a record in 24 hours. Unfortunately, reality is an average time of 334 working days (see para. 5.59 & 5.60). For a new criminal record, the average time to process was 27 working days ( see para. 5.60).

If the employer hires someone with a minor criminal record, they may getting someone with a much more serious, but undisclosed, conviction. If the employer hires someone with no criminal record, the employer may be getting someone with an undisclosed conviction for a serious offence.

 

Facial Recognition Databases in Canada

Passport Canada’s facial-recognition database reportedly has more than 20 million records of old photos of passport applicants. It uses this to match new applicants and those seeking renewals.

The crown-owned Insurance Corporation of British Columbia (ICBC) offered the Vancouver police the use of its facial recognition technology and database to find people involved in the Stanley Cup hockey riot in 2011.

The RCMP has the Canadian Criminal Real Time Identification Services.

The Canadian Border Services Agency (CBSA) has the NEXUS program for frequent travellers to the United States. Along with Citizenship and Immigration Canada, it operates a Temporary Resident Biometrics Project.

Provincial motor vehicle operator licensing authorities have large facial-recognition databases. The same may be true of many other provincial licencing authorities, for example, Private Investigator licencing.

 

Searching by Name for Real Estate Holdings in Canada

Occasionally, we get a request to search for ownership of real property throughout Canada.

The provinces have been granted power over “property and civil rights in the province” in Section 92(13) of  The Constitution Act, 1867.  As the provinces control the land registry systems, the type of searches available, and their costs, varies by province.

The four maritime provinces (PEI, NB, NS, NL) can be searched by name.

Searching by name in Quebec is not permitted.

In Ontario, searching by name must be done by searching each land registry office. The Province of Ontario has 54 Land Registry offices. First, we  search by name to locate possible properties, then we do the sub-search of each property to get the abstract of the title.

In Manitoba, about 85% of the titles are in the system. They can be searched by name, then we have to order documents.

In Saskatchewan, we can search by name. Document costs apply if we find a property.

Searching by name is not possible in  Alberta.

We can search in British Columbia by name. There may be additional document costs if we find a property.

 

Political Contributions In Canada

Federal Political parties in Canada are only required to report the identities of contributors donating over $200 to one riding association or the central organization. For donations of $200 or less, receipts must be kept by the individual riding associations, but Elections Canada doesn’t record of them. Completely anonymous contributions of $20 or less are permitted.

Elections Canada confirmed in 2007 that individuals could contribute as much as $60,500 over the $1,100 limit – simply by donating $200 to each of a party’s 308 riding associations and Elections Canada would never know about it. Contributions of $200 or less are reported in aggregate, without a break-down by contributor to allow cross-checking across the riding associations.

However, we can search the Contributions & Expenses Database and other databases maintained by Elections Canada.

 

What’s in Your Wallet?

I came across an article on lifehacker entitled, Use an Old Gift Card to Keep a Bit of Duct Tape With You at All Times. I’m sure the article’s author is a Canadian at heart.

In recent months, I have travelled all over Eastern Canada, and here’s what has migrated to the bottom of my briefcase.

Everyday Carry

It’s surprising how often these things get used. The compass on the match case is really useful when I get twisted around on a back road and don’t know what direction to go. The white duct tape on the Maglite makes it easy to find in the bottom of a black briefcase as well as holding things together.