Sources: Licensed or Unlicensed

It has been tritely observed on many occasions that knowledge is power.The key component of and precursor to knowledge, however, is information.In order to obtain information, however, it must be available or accessible.If information, although existing in fact, is not available or accessible, it may as well not exist at all. If information, existing in fact, is available or accessible, but cannot be used owing to artificial and/or legal rules that render it inadmissible, it also may as well not exist at all.The mere collection of information without purpose in the absence of organization, direction or application, can be a hollow, futile exercise.

Theoretically - if viewed as a continuum - information can be totally restricted - not available at all - or completely unrestricted - absolutely and totally accessible by anyone at any time.We do not, however, live in a theoretical world, but rather a practical and political world.Whether a person chooses to actively conduct research, is the beneficiary of information from a 'whistleblower' or other confidential source or simply passively assimilates information and thereby comes to discover or learn data of various kinds, how he or she comes to process and apply that information, if at all - depending on the level of knowledge that information has imparted - therefore determines the degree of power that person is able - and chooses - to exercise.Whether that power is exercised for a positive or negative purpose is another matter and can depend on one's perspective, vested interest or goal.

For example, scientific research that led to the development of information about nuclear physics that resulted in knowledge of how to unleash the power of the atom has been viewed as both a tremendous achievement as well as a tremendous evil. Clearly, this knowledge can be - and some would argue has been - applied both positively and negatively.

Equally, investigative research that leads to the development of information that results in, for example, knowledge of the location of an individual may also be viewed as a tremendous technical achievement or a tremendous threat and violation of privacy. Clearly, this knowledge can be applied both positively, i.e., to disperse estate assets to a person or negatively, i.e., to stalk or kill a person.The availability of information is variable depending upon many factors including the level of scientific discovery, technology as well as politico-government policy.Information - and the ability to access that information - lies at the core of and is the lifeblood of the investigative function.

It is a further trite observation that police, other law enforcement officials, government regulators, inspectors and private investigators require access to information if they are to perform their respective roles effectively or at all.A practical or legislated environment that restricts, frustrates or denies access substantially or entirely to critical information clearly would impact the ability of these individuals to conduct successful investigations to a material and significant degree.The police, other law enforcement officials, government regulators, inspectors and private investigators - depending on and to the extent they are regulated by legislation - operate in an environment of rules that govern their ability to locate, obtain, disclose and use information of both a real and circumstantial nature.

To the extent all of these officials are officially sanctioned by government to conduct investigations, these individuals are - in effect - 'licensed' to investigate, obtain and use whatever information that can be located or discovered that may relate to whatever assignment or contract they undertake but they must do so within the procedural and substantive boundaries established within legislation, case law and/or operational policy In some cases an actual physical 'licence' may be issued as in the case of a private investigator while in other cases, the licence or right to investigate is inherent to the particular role or function as in the case of a police or law enforcement officer.

In effect, the limits of investigative opportunity and action are politicized and only those sources of information and methods of collection that are 'approved', i.e. are deemed to be 'politically correct', may be lawfully pursued regardless of the substance, extent of financial loss or 'gravitas' of the civil or criminal issue in questionPrivate Investigators must be licensed in some jurisdictions while in others there is no such requirement. Eight states in the U.S.A., for example, currently do not require licensing - Alabama, Alaska, Colorado, Idaho, Mississippi, Missouri, South Dakota and Wyoming - and licenses are not required in many other countries, such as, for example, the Bahamas.

The question, then, is whether the status of being licensed or not has any relationship to the quality of nature of information that is obtained and/or disclosed by an investigator? In those jurisdictions where licensing of private investigation agencies and private investigators is required, it is apparent that legislation requiring licensing has two goals: the collection of licensing fees as well as the general regulation of the nature and conduct of private investigation agencies and private investigators.

In Ontario, Canada, for example, a new Private Investigation and Investigative Services Act, 2005 came into effect on August 23, 2007. Private investigators and agency owners were advised that "The [ACT] will strengthen the professional requirements for security guards and private investigators as well as enhance public safety". Nowhere, however, does the Act address or enhance in any way the ability of private investigators to obtain critical - particularly confidential - information.

Rather, the Act largely imposes a broader level of administrative and enforcement control in relation to private investigation agencies and investigators alike, permitting an Investigator or an Inspector appointed under the Act (or a police officer) to conduct investigations or inspections and/or conduct a search of a licensed premise both with and without warrant under 'exigent' circumstances. Section 27 of the Act provides that "the Registrar or an inspector appointed under section 26 may at any time initiate and conduct an Inspection and may, as part of that inspection, enter and inspect at any reasonable time the premises of a licensee that is licensed to sell private investigator or security guard services…"

(For an excellent, comprehensive and timely review of the state of private investigation in Canada, please reference Canadian Law & Private Investigations by Norman Groot published by Irwin Law Inc. (www.irwin.law.com). Mr. Groot is a former police officer and principal of the Investigation Counsel Professional Corporation (www.investigationcounsel.com), a Toronto law firm.

The police, other law enforcement officials, government regulators, inspectors as well as private investigators all share the very same need to access and obtain information to enable them to successfully undertake and resolve any assignment or private investigation contract they come to undertake.

While the police, other law enforcement officials, government regulators and inspectors are often given special powers that permit them to act summarily without judicial intervention, to arrest without warrant or to enter property - whether personal or business - and to question, search and seize information or items of potential evidentiary value - also without warrant - private investigators - in Canada at least - have no such authority.

If the police, for example, are found - following investigation - to have violated rules related to how they located, obtained, disclosed or used information of potential evidentiary value, the information that is deemed or found to have been obtained improperly or illegally is generally treated in two different ways: it can be either excluded entirely or admitted in evidence on a discretionary basis.

In the United States, for example, a policy of exclusion reflected by doctrine referred to as "The Fruit of the Poison Tree", essentially has often resulted in the total exclusion of information that otherwise may have been presented and admissible in evidence AS WELL AS any additional information that was obtained or resulted from the original information that was deemed or found to be unlawfully obtained.

In Canada, the admission of information deemed or found to be unlawfully or improperly obtained has been treated in a much less rigid, discretionary manner. This would appear to reflect a more common-sense approach to the obtaining and use of information that weighs the nature or 'gravity' of any alleged violation of rules related to the information against the nature or 'gravity' of the matter to which the information relates.

While the police officer or other official who is found to have violated the law in relation to the manner that information came to be obtained may be subjected to some critical comment by a trial or appellate judge, administrative punishment or censure for breaching the rules, only the most heinous of violations appear to result in any form of substantive penalty, criminal charges or termination of employment.

Nevertheless, insofar as private investigation agencies and private investigators are concerned, not only are private investigators not granted any special investigative authority or power, but there would appear to no basis for investigators to conduct investigations or obtain information other than in strict compliance with current rules. A private investigator, in law and in practice, has no more power or authority to investigate than does his or her client and merely acts as the agent of the client.

This situation begs the question of just how private investigators - or any other investigator for that matter - are to effectively conduct anything other than the most rudimentary and simplistic of investigations in the absence of special powers or authority and if access to basic and critical information is prohibited because of 'privacy' legislation and related public and institutional policies?

The answer, in part, depends on the jurisdiction in which an investigation is to occur as well as the accessibility of information no matter what jurisdiction is involved. In the United States, for example, there are numerous comprehensive, publicly available as well as commercial and other unique, esoteric, little-known databases containing a great deal of useful personal and corporate information accessible via the internet and otherwise for a very modest fee - or in some cases for nothing at all - that can greatly facilitate the private investigation function. Much of this information would be considered confidential and could not be accessed in Canada without Consent or a Court Order.

In Canada, in contrast, there are no similar comprehensive databases whatsoever and very few that can be accessed by the general public, private investigators or law enforcement officials. Those that are or may, under certain circumstances, be available - for example, those providing lien and loan information or motor vehicle records - often do not have useful information, have out-of-date information or have no information at all.

Information on individuals who use false identification, are self-employed, use cash only in financial dealings (and thus have no credit record), conduct their financial affairs via the internet and/or ATM link to off-shore bank and brokerage institutions, have no registered liens or loans, rent and do not own property (at least in their own name), take advantage of solicitor-client privilege and/or use legal counsel as proxy, drive leased, borrowed or corporate vehicles and/or do not voluntarily update address information as required with the Ministry of Transportation, other government ministries, departments and agencies, attend private clinics for medical attention, and/or who do not have a driver's licence or other government approved identification at all, and/or have residency in another country, among other things, can be very difficult to locate.

Those few publicly internet-accessible databases such as those that are provided by certain communication companies are only as good as the information that may have been voluntarily provided by subscribers and may be months or years out of date.

Non-published telephone numbers, the absence of cellular telephone directories, and the use of pre-paid cellular telephones obviously restrict the ability of everyone - including police and private investigators - to locate individuals and, conversely, facilitates the ability of anyone who - for whatever reason - wishes to hide, live "below the radar" and remain anonymous.

Assuming the credibility of the nature of or the circumstances surrounding the disclosure or discovery of otherwise confidential, non-public, non 'politically correct' information, does it really matter whether the source of information is licensed or unlicensed in terms of the relevance, substance or importance of the information 'per se'? The answer, clearly - from a technical point of view - is that it does not matter at all.

Information, strictly speaking, is not something that is inherently politicized as proper or improper, admissible or inadmissible, or lawful or unlawful. Rather, information is, in itself, simply a neutral conceptual entity capable of unlimited politicization and legal definition.

If confidential motor vehicle or licensing information, including a photograph, of an individual that might otherwise be unlawful to obtain in Canada is provided by a client to a private investigator, should it really matter to the private investigator how the data was obtained if it appears on its face and is later confirmed to be bona fide information?

If confidential personal information in the form of a Credit Bureau Report provided by a friend who works for a credit reporting agency or mortgage institution is provided by a client to a private investigator, should it really matter to the private investigator where the data was obtained if it appears on its face and is later confirmed to be bona fide information?

If confidential credit card information related to a former spouse or business partner is obtained by the employee of a credit card company and provided by a client to a private investigator, should it really matter to the private investigator how the information was obtained if it appears on its face and is later confirmed to be bona fide data?

If confidential bank account information obtained by a family member who is able to access such information as a result of employment in a financial institution is provided by a client to a private investigator, should it really matter to the private investigator how the information was obtained if it appears on its face and is later confirmed to be bona fide information?

If confidential residential address information that would be inaccessible and unlawful to obtain in Canada can be found in databases compiled and maintained is some other country, should it really matter to the private investigator that the same data could not otherwise be lawfully obtained in Canada if it appears on its face and is later confirmed to be bona fide information?.

If confidential personal or corporate tax information about an individual or corporation within Canada is provided to a private investigator by an anonymous source outside of Canada, should it really matter to the private investigator that the same data could not be lawfully obtained in Canada if it appears on its face and is later confirmed to be bona fide tax information?

If confidential financial asset information about the identity of unknown bank accounts in Canada is provided to a private investigator by an anonymous source in another country, should it really matter to the private investigator that the same data could not be lawfully obtained in Canada if it appears on its face and is later confirmed to be bona fide financial information?

If confidential financial information, including the location and detailed data related to off-shore bank accounts and investments in brokerage houses that are the proceeds of criminal activity or theft of joint matrimonial assets, is provided by an international source to a private investigator, should it really matter to the private investigator that the same data could not be lawfully obtained in Canada if it appears on its face and is later confirmed to be bona fide account information?

If confidential police intelligence information compiled during secret criminal investigations by law enforcement personnel in Canada concerning allegations of corruption and influence peddling between and among certain current and former politicians and government ministers at the provincial and federal level comes to the attention of a private investigator, should it really matter to the private investigator that the same data could not be lawfully obtained if it appears on its face and is later confirmed to be bona fide criminal investigation information?

If confidential account information related to the location and particulars of monies deposited in international bank and brokerage accounts in Europe resulting from the 'laundering' of corrupt political payments by politicians is provided by an international source to a private investigator, should it really matter to the private investigator that the same data could not be lawfully obtained in Canada if is appears on its face and is later confirmed to be bona fide account information?

If confidential bank and investment account information related to the location of monies stolen from the shareholders of a corporation and transferred to off-shore institutions is provided by an international source to a private investigator, should it really matter to the private investigator that the same data could not be lawfully obtained in Canada if it appears on its face and is later confirmed to be bona fide account information?

If confidential criminal record information is provided to a private investigator by a confidential source during the course of a due diligence investigation requested by the daughter of a woman who is involved in a new relationship reveals a history of fraud and sexual assault in relation to the male party in question, should it really matter to the private investigator how the data was obtained if it appears on its face and is later confirmed to be bona fide information?

If confidential employment information is provided to a private investigator during the course of a due diligence investigation indicating that a man who claims to be a commercial pilot for a large international airline in fact is nothing but a practiced actor and gigolo, should it really matter to the private investigator how the data was obtained if it appears on its face and is later confirmed to be bona fide information?

If confidential health and medical information is obtained by a private investigator at the request of a woman about a new sexual partner indicates that the male party in question has AIDS contrary to his stated claims, should it really matter to the private investigator how the data was obtained if it appears on its face and is later confirmed to be bona fide information?

If an unlicensed source outside of Canada provides confidential information about anything that could not be obtained lawfully in Canada to a private investigator in Canada, should it really matter to the private investigator how the data was obtained if it appears on its face and is later confirmed to be bona fide information?

If an anonymous source of any kind whatsoever provides confidential information about anything to a private investigator and that information and/or the circumstances surrounding its production are and can later be substantiated and validated by the official Certification of the document, record or thing, through questioning during an Examination for Discovery, or by subpoena or other Court Order, should it really matter to the private investigator how the data was obtained if it appears on its face and is later confirmed to be bona fide information?

And, if the private investigator provides this information to a plaintiff's lawyer or law enforcement officials, should this information not be used for the purpose of aiding or resolving whatever criminal or civil investigation, prosecution or litigation is in question?

Although these and innumerable other potential situations are rhetorical in nature, it is submitted that it is very likely that anyone who claims to be professionally engaged in private investigation would welcome receipt of the various kinds of information described in the above scenarios and would enthusiastically use such information to facilitate the resolution of whatever investigation was in question.

It is also very likely that law enforcement officials and lawyers would equally welcome receipt of this very same information and would also enthusiastically use such information to facilitate the resolution of whatever prosecution or civil litigation was in question.

THE ONLY PERSON THAT WOULD BE UPSET BY THE DISCLOSURE AND INTRODUCTION OF SUCH INFORMATION WOULD BE A DEFENDANT WHO FACES CRIMINAL OR CIVIL LIABILITY SHOULD THE INFORMATION, DOCUMENTS AND RECORDS HE OR SHE HAVE BEEN HIDING COME TO BE REVEALED AND ADMITTED IN EVIDENCE.

It is highly unlikely that anyone who claimed to be professionally engaged in private investigation, law enforcement or litigation would reject and fail to use such information owing to some blind and squeamish belief that information obtained outside of or despite privacy rules could or should not be used.

An investigation of any kind, private or otherwise, is or at least arguably should be - among other things - a search for truth. In order to obtain the truth, it is necessary to discover facts and circumstances that, once confirmed, tend to or actually do establish that essential essence.

To the extent procedural and substantive rules interfere with, frustrate or deny access to the very kinds of information - facts and circumstances - that can facilitate the establishment of truth, this only begs questions of whether there is any real commitment to the concepts of investigation and truth at all.

Further, to the extent it is argued that there is such a commitment, this would appear to apply only to the most simplistic of matters, while sophisticated criminality and 'civil' malfeasance - by default - currently remains virtually impossible to investigate or redress.

This circumstance arguably permits, indeed encourages, those elite and special few who, by virtue of education, training, status, relationship, political position and/or experience, are able to selfishly manipulate financial and other affairs to their own advantage, secure in the knowledge that the curious-and-most-convenient veil - indeed armour - of confidentiality and privacy cannot be penetrated.

To the extent that access to information that can establish truth is denied to investigators, it is very arguable that this is a matter that is as contrary to the public interest as it is favourable to the venal, selfish and criminal interests of the few who are able to take advantage of jurisdictional advantages, conveniently crafted legislation and the twisted application of speciously appealing privacy rules. (A National Geographic Special, Illicit: The Dark Trade, that premiered on April 16, 2008, reveals how hidden criminal networks, some involving current and former politicians, are changing the world through money laundering, massive corruption and subversion of entire governments.)

Legislative and corporate rules have been created to manage, restrict and/or deny access to information of all kinds and often include broad, subjective discretionary non-disclosure authority, citing, for example, restrictions related to law enforcement or national security as if to provide a hermetically impenetrable seal against the unsanctioned 'leak' or disclosure of information in the possession of governments, financial institutions, corporations and other entities.

It is arguable that, to the extent this 'confidential' information is vitally necessary to the protection of individual, business and litigation interests, the more access is denied to such information the more demand there will be to obtain access to such information and the more individuals who have or can obtain access to such information will satisfy this demand by providing or obtaining such information through 'whistleblowers', other confidential sources, the 'hacking' of computer systems, theft of personal data or otherwise.

Victims of sophisticated financial criminality, including individual and corporate plaintiffs attempting to redress substantial losses related to the opportunistic fraudulent activity of spouses, business partners, corporate officers, comptrollers and corrupt politicians, should have access to whatever information is necessary for them to 'level the playing field' and be permitted to lawfully penetrate the unduly restrictive and inequitable wall of protection provided by government and corporate privacy policy and rules rather than have no practical recourse or be forced to seek out necessary and vital information through anonymous 'confidential' sources by inappropriate means.

The courts should be empowered to issue a warrant, subpoena and other order to obtain the production of confidential information on 'reasonable suspicion' that relevant information may exist, rather than requiring reasonable and probable grounds to be established to obtain such information.

Where financial records are in issue, banks and brokerage houses should be required to disclose all relevant information related to an account holder and an independent auditor or ombudsman should be appointed to facilitate the disclosure of such information, ensure the transparency and availability of financial information and investigate any evidence of collusion between an account holder and bank employees or management officials. The disclosure of financial information must include data related to any and all wire transfer activity concerning identified financial accounts and all international banking and brokerage institutions within whatever period of time is defined by the criminal prosecution or civil litigation in question.

Substantive and procedural rules governing privacy and access to critical information should not be defined in such a way as to permit if not encourage sophisticated criminal and civil financial malfeasance and frustrate the effective investigation, prosecution and litigation of these matters.

To the extent this is the case, it is very arguable that the existing system of rules are deliberately designed to protect the interests of sophisticated and venal financial criminals as well as wealthy, powerful and politically connected individuals - among those 3.6 % of Canadian tax filers who report income of over $100,00.00 - who, essentially, are generally the only persons who are able to or can justify having off-shore corporations, bank and brokerage accounts as well as complicit asset managers and lawyers who protect and manage the hidden financial affairs of these individuals.

The remaining 96.4% of the Canadian population, however, because of financial circumstances - little to no savings, high levels of taxation and reported before tax incomes less than $100,000.00 (86% reporting incomes less than $60,000.00) - is unable to take advantage of rules that clearly favour and protect those with substantial discretionary and investment income but particularly those who unilaterally and without warning divert assets in violation of criminal and civil standards knowing that little practical recourse exists to redress the situation by the state, corporate or individual victims.

Arguments that current privacy, banking and other evidentiary rules that maintain the status quo must be respected and continued, if not strengthened, beg the question as to whether proponents of the current situation simply value the protection of selfish vested interests over fairness, equity and truth. Clearly, the process of searching for truth is nothing more than a sham and charade if access to critical information is denied and further, if critical information that is found is deemed to be inadmissible or of no evidentiary value.

There is something very wrong with the current situation. While it is generally and proverbially acknowledged that 'the truth will set you free', the absence of truth clearly continues the enslavement of those who are unable to establish it owing to a systemic system of inequitable rules that artificially prevent the discovery and introduction of critical and relevant information and merely perpetuates an unacceptable hypocrisy that favours only a small number of sophisticated and 'privileged' individuals.

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