PI’s,
Pretext, Privacy, & The HP Scandal
It's Not Just a USA Problem Anymore
Copyright – Kevin D. Bousquet
(Editorial Notes: This article concerns so-called privacy proposals that
are now working their way through what can be called Canada's Capitol Hill.
It's as relevant in the USA as it is in Canada and many other counties of
the free world.)
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 are trying to locate a missing friend, family member or a
birth parent in an adoption situation, or if you’re trying to find
that 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, this 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.
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.
In order 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.
It might be asked, what lawful methods could have been used by Hewlett
Packard to investigate their boardroom leaks? What methods 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 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 then 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 conducted a pretext to get 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 with
the intent to commit a crime, and using those same methods to investigate
or solve a crime. 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 sting operations to
catch pedophiles via chat rooms, setting up a woman to pose as an under-aged
girl?
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 car,
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.
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 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 law suit). 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. The Law and Pretext and Impersonation
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 do 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 PI 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 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.
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, which 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
In order 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:
Adoption
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 aleringt 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.
Background Investigation
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.
Child Support
Millions of individuals have child support orders they can’t collect.
Their failure to collect on these 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 collectable 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 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.
Debt Collection Skip Tracing & Recovery of Assets
PIs use telephone call records and other databases to find witnesses,
parties to litigation and missing debtors. Banks, trust companies, lawyers
and insurance companies hire PIs to collect debts, serve documents and
to aid in executing judgments. Recipients who have child support orders
use PIs to find where would be payers live and work.
Collection agencies also have in-house skip tracers to find debtors who
owe money on behalf of banks and other entities.
Pretext is almost mandatory in this type of investigation. A PI might
call a home of a debtor in attempts to obtain an alternative home number
or a work number. The PI might pose over the phone as a sale person or
attempt to conduct some form of a question and answer survey. This is
done to obtain personal information so creditors and other parties can
complete there litigation process.
Without pretext in this area of investigation finding individuals would
be non existent.
Honesty Shopping
Private investigators are retained on behalf of retail head offices to
pose as a customer at retail outlets. The private investigator goes into
the retail outlet and purchases two items of clothing with the exact same
price. The private investigator then watches the employee to see if both
items are accurately processed through the cash register. This could also
involve wearing a hidden video camera or even installing a hidden video
camera in a discreet place in a retail outlet.
A similar form of deception is used owners of bar, and night clubs who
hire PIs to to monitor their bar tenders to see if all drink orders are
being purchased through the cash register. A PI will pose as a customer
and continually watch the transactions processes or not processed the
cash register.
Insurance Investigation
While the insurance community continues to be the biggest client to Private
investigators they are in fact loosing the battle of insurance fraud.
This loosing battle is one of the main reason consumers continue to find
their monthly premiums increasing at alarming rates every year. While
PIs are involved in all aspect of insurance investigation they are most
commonly involved in doing surveillance video taping on would be cheaters.
Insurance claimant’s who are represented by a lawyers are already
well protected under other legislation that would prohibit any PI (or
any third party for that matter) of contacting the claimant at home or
at work without their lawyer present. Pretext and or trickery in insurance
claim investigation is almost non existent.
However video taping cheating claimants continues to be a sensitive and
controversial topic. Privacy advocates continue to fight that a residence
should include the front and backyards as it has been legislated in many
parts of the world. This is known as “the residence or any part
there of” issue. If changed a private investigator sitting on surveillance
watching a cheating claimant’s home will be refrained from video
taping any movement if the claimant is in his backyard or front yard for
example.
So if while on surveillance a PI observed a claimant who was faking an
injury jumping on a trampoline with his children on the front lawn of
his home the video tape will be in admissible. The PI could find himself
in charged, fined or imprisoned jail for taking the video no matter how
obvious.
This would also make it difficult for PI’s who investigate claimants
who my be working from home. A claimant for example who is fixing cars
in his driveway for cash moving and bending and not reporting the income.
All of these observations would be illegal and inadmissible.
It’s believed that the legislation change will be right around the
corner.
While PIs are allowed to follow and video tape claimants who are suspected
of faking their injuries, there has been a case before that went before
Privacy Commissioner where an employer suspected an employee of faking
an injury and being unlawfully on benefits. When the investigator confirmed
the employee was faking benefits by way of video taping the employee complained
it was a violation of privacy. While the evidence held and the PI was
not repremanded it was recommend at the hearing that surveillance only
be conducted as a last resort. It should only be contemplated if all other
avenues of collecting personal information have been exhausted. The decision
to undertake video surveillance should be made at a very senior level
of the organization; and Any seasoned insurance investigator would agree
with the recommendations but most would argue what personal information
is there that can be obtained by when the doors to obtain personal information
are closing.
Missing Persons & Children
Private investigators have been instrumental in finding our missing children.
Many child abduction cases involve the parent who does not have formal
custody kidnapping the child. Child abduction cases involve finding the
parent who has abducted the child. This involves a great deal of pretext
where a Private investigator will concentrate on finding other family
members who under the right pretext might give up the new home phone number,
cell phone or work phone number of the parent who abducted the child.
The PI might call up family members saying he is a potential employer
checking references, sending a parcel etc... Many are unaware that a great
deal of tracking down our missing children is conducted via phone inquiry
and via lawful pretext. It is expect that a parent who has abducted child
will not have his or her name in any published phone book or anything
that might be a part of public record. It will be other family members
and friends what will lead to the address of the parent who has abducted
the child.
Undercover Investigation
Private investigators are hired by industry to work undercover. They pose
as one of the employees and report to management on internal and theft,
drugs, just to name a few.
Questions about pretext and deception would arise as to if a PI is working
undercover if he or she is in fact violating privacy or pretext laws.
Underground Economy
Private investigators have been investigating the underground economy
from the very beginning. People work in the underground economy for many
reasons, to evade taxes, creditors, child support, or mostly commonly
are simply involved in crime and being paid in cash. Virtually the only
way to show that a person wakes up every morning and goes to work at a
job for cash is to have them followed.
The controversy of surveillance and video taping continues. The PI might
alternatively make pretext inquiries with the suspect or family members
to obtain a work number where the person might be working. There are number
of lawful pretexts that can be conducted by PIs to try to bring out a
work number with family, friends or relatives.
Vehicle Theft
The are a number of PI agencies that specialize in vehicle theft investigations
on behalf of banks, finance companies and private bailiffs. PIs continue
to be instrumental in not only finding stolen vehicles but identifying
theft rings that usually involve organized crime.
Many insurance companies have in house theft investigators that are working
in the private sector most of them are ex-police officers.
The Back Fire of Privacy Legislation
If you’re a law abiding citizen, paying your debts and taxes this
is a great piece of legislation. But the backfire of the legislation is
protecting our criminals and debtors.
Private investigators and the private sector require access to government
services and private services that hold confidential information on people
and companies. Important tools like access to driver’s record information,
access to the computerized land registrary system, the use of the credit
bureau in judgment debtor and collection situations just to name a few.
But the legislation continues to backfire.
The public is in panic over crimes like impersonation, bank fraud, mortgage
fraud and insurance fraud all things we investigate every single day.
We are the answer to this problem not the cause. All of the tools that
hold the data we need to investigate are slowly cutting us off or will
very likely cut us off over time.
In Provinces like Quebec and Alberta, PI’s have no access to government
motor vehicle information. They can’t even run a license plate to
follow an insurance claimant or a driver’s record to see previous
driving infractions.
How are we expected to do insurance claim investigation if we have no
access to vehicle or driver information?
How is a PI supposed to help a person enforce a judgment or child support
order when for the most part credit bureaus make it virtually impossible
for PIs to have access even if they have a certified copy of a Judgment
or Support Order? The credit bureaus are already under scrutiny by the
media because of impersonation and credit card fraud concerns.
Mortgage Fraud is out of control rest assure it will be a matter of time
before the computerized land registry system will panic and closed to
the private sector. It will only be lawyers and real estate agents who
will be allowed access. How do we then conduct mortgage fraud investigations
when we can’t even do a title search on suspects that might own
other properties?
The newest growing scam which is similar to mortgage fraud is where fraudsters
register a loan on your vehicle and skip out with the money. Someone who
owns a luxury car for example wakes up one morning and finds their vehicle
has be seized because a fraudster registered a loan against the vehicle
and absconded with the money. The bank bailiff then seizes the vehicle
right in your driveway.
The insurance companies are going crazy with this new scam and many don’t
even understand how it the scam works. All they know is that claims are
coming out of the woodwork.
While the police are involved
in investigating these crimes so is the private sector. In order to investigate
this crime we need continued access to both the Driver Record information
and the Personal Property Security Registration system. PI’s in
Ontario have been fortunate to have continued access driver vehicle information
but this crime is Canada wide problem and we need access in every Province
not just a few. The private sector is convinced these bodies of information
will also panic and again cut off the private sector. We are the ones
that investigate these crimes on behalf of the banks insurance companies
and their legal counsel. There are not enough police in the world to combat
this problem.
The information bodies continue to panic because of privacy concerns and
then close the door on the very industry that help to resolve to the problem.
Legal Community Already In
TroubleThe legal is community is in big trouble they just haven’t
realized it yet. Sooner or later would be Plaintiffs and the general public
are going to realize that when they sue in court attempting to recover
their losses even if they win their case if defendant simply refuses to
pay there is every likelihood their court ordered judgment or monetary
award could be nothing more then a worthless piece of paper.
Millions of people have judgments, court orders, child support orders
or even criminal compensation wards that are completely worthless and
may never be collected. The public continues to be under the illusion
that when they win these awards that if the defendant (now called the
debtor) refuses to pay that the person will be thrown in jail. It doesn’t
work that way. You’re essentially on your own trying to collect
it. While costly lawyers can sometimes help trying to collect on these
awards it is without any doubt an “investigative mission”
to discover assets not a legal one.
If you’re trying to enforce your award you’re on your own
trying to find a bank account, employment, or non leased/financed vehicle
so you can collect your money. All the doors to find this type of information
are closing fast and this includes law firms.
How is anyone expected to find not only the bank account on a person but
the actual branch so a garnishment can be issued? Even then there is virtually
no way of discovering if there is money in the account before you spend
the money on legals to complete the garnishment. Sometimes a credit bureau
search can give leads but this door is already closed on some agencies.
Don’t look to the banks to give up confidential information on their
customers. The banks continue to have tightened their reigns because of
fraud concerns.
Depending on the Province where you live you might be able to do a vehicle
search to find vehicles in a person’s name. A lien search also has
to be conducted to make sure there are no liens on the vehicle so it can
be seized. It’s just around the corner that access to these doors
will be closed if not completely.
If Private investigators are not allowed to use trickery or pretext to
obtain personal information such as a home address or employment how do
we find employment on our debtors? A credit bureau search might help if
access is available.
What if the person is a participant
in the underground economy working at a job for cash? The only way this
can be found out is via a pretext call (trying to get a work number from
someone at the household) or to follow the person into work at expensive
surveillance rates.
There is no other way in the world to know where a person is working under
the table then to follow them. If PI’s are allowed to use expensive
surveillance to follow debtors into to work this is costly and will create
more controversial privacy concerns.
Lawyers will argue in this article that they can perform expensive judgment
debtor examinations where debtors are compelled to come into an examination
and reveal their assets under oath. If the debtor fails to show up the
debtor can be committed to jail. Very often debtors who have been ordered
into examinations do nothing more then lie and cover their tracks either
before or after the examination.
While a debtor can be committed to jail for not attending the examination
the public needs to know that the debtor is in fact being committed to
jail for failing to comply with the order to attend. It has nothing to
do with not paying. The process which is known as Warrant of Committal
is not a collection process it’s a punishment process for not showing
up to the examination when ordered.
Our monetary awards in our court system continue to become worthless pieces
of paper. Recipients continue to feel the pain trying to find their defendant/debtors
and collect on their money. There is simply one road block after the other
being unable investigate where the assets are.
The televised O.J. Simpson case is a classic example. These civil plaintiffs
who have won their judgment against Simpson continue to chase him with
one road block after the next.
The Resolve
For every door that is closed the must be an opening to obtain information
via lawful means.
Policies have to be in place that allow for sensitive data to be released
for people who have judgments, payment orders or third parties that are
working under the direction of a lawyer or insurance company.
For example if someone has a judgment or has a support order that individual
should be able to retain a collection agency, PI Firm, lawyer or a Forensic
Accountant to be able to conduct a credit search on the debtor that might
give leads for bank accounts and employment. The credit bureaus could
require that they must be provided with a certified copy of the judgment
or the order before the search is conducted.
If a PI has retainer letter from an insurance company or a lawyer they
should be able to do a motor vehicle search or a driver’s record
search in any Province without restriction.
How do they expect a single mother of three starving for child support
to find the bank account bank branch on the father of her children that
just refuses to pay? Would we ever see the day that a judgment or a support
order could just be served at the head office of a major bank? Would the
bank head offices when provided with a garnishment search our their branches
for accounts and register the garnishment for us? The banks would appose
any attempt by parliament to implement such a strategy.
What are the options then? Does the information system go underground?
Do we move to a police state? Would the example of our mother of three
have to befriend a bank teller to get the information illegally?
The doors are closing rapidly all in the name of privacy. With no consideration
or exceptions for those who fight fraud, collect our debts, our child
support or catch our criminals.
Who will find are missing birth parents are family members? How we investigate
lies, infidelity? Who will find our witnesses, missing children, birth
parents are missing vehicles and stolen property? Who will be allowed
to investigate for defense and the wrongfully convicted?
The continued and growing restrictions will affect every person either
now or in the future right across the globe.
What Can We Expect
Banks will increase insurance rates going into loans, knowing perfectly
well there is a poor likelihood collection if their customer defaults
or defrauds them.
Underwriters of insurance policies and their actuaries will take into
account the investigative restrictions when they write insurance policies.
Insurance premiums will increase out of control to the point that only
the wealthy will be able to afford insurance. All aspects of insurance
could be affected not just popular automotive and injury policies. With
the increase in premiums we can expect to find more individuals without
insurance once again making it more difficult for victims to collect their
losses either via insurance or through the courts.
Defense Lawyers and accused persons who retain PI’s will be restricted
to what PI’s can and can’t do in aiding a defense Investigation.
Defense lawyers will maintain their accused clients are in a disadvantage
and will ask judges to throw matters out and set their clients free.
Certainly with the new pretext legislation we can expect that Crown Attorneys
will see Defense lawyers file motion after motion requesting the courts
set their clients free as a result of a pretext being used.
Are we to believe that public law enforcement by itself will be able to
tackle the civil unrest after the have the doors are closed on the private
sector? Police forces and their specialized crime units are statistically
backlogged out of control.
While privacy advocates continue to applaud the Privacy Protection legislation
and will no doubt support pretext legislation. But will they will support
the legislation when they themselves have become personally victimized
by crime, wrongfully convicted, or discover the impossibilities of trying
to collect a debt, judgment or child support order.
Fraud is the worst it has been in the history of man kind. With computerization,
the internet, and the sophistication of scanners and copying machines
the problems will remain out of control at alarming rates. Fighting crime
can not be resolved by public law enforcement alone. Should every security
guard in our malls and buildings be replaced by police ?
There is no better time then right now to be a criminal and in particular
committing the crime of fraud. Would you rather have ten thousand or a
hundred thousand fighting the war on crime?
The privacy of criminals, debtors
and those who are participants in the underground economy who refuse to
pay income tax are now protected under federal acts. The private sector
that would seek to catch, collect or prosecute these people will continue
to be legislated having their tools removed from year after year.
While we should all be supportive of privacy legislation we must all be
aware of the backfire. There has to be legislated exceptions to give victims
rights to by pass the protection of personal data when it comes to the
examples given.
Many are intimidated by the work conducted by PIs only up until they need
the help of one or anyone in the private sector for that matter. Once
you feel the pain of being a victim of crime, wrongful prosecution, or
have a judgment, child support order or a debt that can’t be collected
you will feel the frustrations of the private sector that would serve
to help you but can’t.
Private investigators, security guards, forensic accountants, insurance
adjusters, and employees of in house bank fraud departments may find themselves
in a jail long before their targets of investigation. Their punishment
for their methods may be more then the offences they were investigating.About
the Author Kevin Bousquet has been a licensed PI since 1986. He is a graduate
in Law Enforcement, The Law Clerk Admin Program and a Certified Fraud
Examiner with the Association of Certified Fraud Examiners.
He is president of The Corpa Group Inc a licensed Private Investigation
agency established in 1991 working on behalf of major corporations, insurance
companies and their legal counsel.
Kevin Bousquet can be seen giving lectures advocating on ways to combat
fraud and changes to Adoption in Ontario with the Adoption Counsel of
Ontario.
Kevin Bousquet has his own TV show “Undercover With Kevin Bousquet”
where shows depict real life examples of fraud, victimization, and the
work conducted by the Private Sector. His show can be seen satellite,
persona cable streamed at http://www.resourceschannel.com/programs-undercover.html
Kevin D. Bousquet
2000 Appleby Line
Suite 2000
Burlington, Ontario
L7L 7H7
(905) 331-1333
(905) 331-0234 |