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Tracking Device Investigations

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A Tracking Device is an electronic mechanism that can be carried by, attached to or implanted in virtually any person or thing and that can transmit data with respect to the location of the person or thing, usually facilitated by related proprietary computer software. Tracking devices are most commonly, however, attached to an object such as a shipping container or vehicle.

Tracking Devices differ in their design, complexity and functionality. Some devices are capable of providing only very limited information, for example, the current location of a person or thing. Other devices are capable, in addition to providing mere location information, of transmitting and receiving a wide range of data, executing various commands such as unlocking doors or turning on lights as well as monitoring numerous functions, including speed, distance, temperature, heart rate and other real-time data to name but a few examples.

Most modern Tracking Devices generally utilize Cellular or GPS technology, or both, to transmit and receive data. Some devices are designed for either temporary magnetic or other forms of more permanent attachment, some can be "hard-wired' to the electrical system of a vehicle while others can operate on battery power for limited periods of time.

A Tracking Device can be used to facilitate and complement certain private investigations, particularly those that require physical surveillance, but the use of a Tracking Device in such circumstances is subject to both practical as well as legal considerations and should not be viewed as a ‘silver-bullet' or panacea in relation to surveillance matters.

Practical considerations include the cost or ‘rental' of the device, choice of the most appropriate device, challenges related to physically attaching and concealing the device, the existence and quality of cellular service - particularly in rural areas - and the degree to which the subject of an investigation using a tracking device is "surveillance conscious". (Improperly installed devices can become detached, lost, or discovered by an anxious, curious or sophisticated ‘target' or, found, quite accidentally, by a mechanic during a routine or unexpected examination of a vehicle.)

Legal considerations include determining the right of a person to attach or authorize the attachment of a tracking device, whether the attachment can or should be occur pursuant to a warrant or judicial order, whether the attachment of the device may violate privacy laws in the jurisdiction in question, and/or whether attachment of the device may create criminal or civil liability.

In Canada, the use of a Tracking Device appears to be related to the issue of regulation and oversight of surreptitious electronic surveillance generally such as the interception of private communications and use of video cameras, particularly by agents of the state such as police and other law enforcement agents. Section 492.1 of the Criminal Code of Canada provides as follows:

"Section 492.1 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that is relevant to the commission of the offence, including the whereabouts of any person, can be obtained through the use of a tracking device, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
(a) to install, maintain and remove a tracking device in or on any thing, including a thing carried, used or worn by any person; and
(b) to monitor, or to have monitored, a tracking device installed in or on any thing."

It would appear, theoretically, that anyone, including a private investigator, could provide the necessary information on oath in writing to a justice but to do so would negate, in part, the "private" sense of an investigation by involving agents of the state including the justice and authorized peace officer or public officers and would be unnecessary in any event where Consent or private Authorization can be obtained.

While the installation and monitoring of a Tracking Device by law enforcement agents and the police requires the obtaining of a warrant for those purposes, there would appear to be no such restrictions applicable to members of the general public as long as the person installing and monitoring the device has the right to conduct such installation and monitoring because of ownership or explicit authorization by the owner of the thing upon or in relation to which the Tracking Device is installed or where Consent is obtained.

Tracking Devices are routinely used, for example, by shipping, trucking and courier companies to track the location and movement of shipping containers, vehicles and the goods contained within them.

There would appear to be no offences within the Criminal Code of Canada related to the use of a Tracking Device ‘per se', for example, but it may be that the installation of a tracking device without proper authorization or permission on a vehicle or other object could provide the basis for a charge of Mischief under Section 430(1) of the Criminal Code of Canada which provides that "Everyone commits mischief who willfully…(c) interrupts [or] interferes with the lawful use, enjoyment or operation of property."

Equally, there may be civil liability to the extent it can be argued that the unauthorized installation of a Tracking Device on a vehicle or other object constitutes a trespass to that property theoretically giving rise to a claim for and an award of financial damages.

A Tracking Device can be used solely for the purpose of generating general data of interest to a Client, for example, to determine the rough location of a person and/or vehicle or the Tracking Device can be used in conjunction with and complemented by physical surveillance by private investigators.

Because location information provided by a Tracking Device generally is not absolutely precise - the devices report a virtual location that may, in fact, be some relatively small distance from the actual location - it may be necessary and/or desirable to assign physical surveillance in a particular situation to confirm exactly the position of a vehicle or person associated with the vehicle, for example, the actual address that a person is attending, in order to obtain relevant photographs of that person, associates and/or activities.

The use of a Tracking Device, may, however, reduce the need for more than one surveillance investigator since the location of the vehicle or person can be roughly determined in a manner that is impossible through traditional physical surveillance alone where the future location of a subject cannot often be predicted or known in advance.

If a client - as opposed to wanting a Tracking Device installed and monitored - is concerned that he or she may be the subject of a surreptitious surveillance and suspects that a Tracking Device may be installed in his or her vehicle or other thing, the presence of such a device can be confirmed by technical examination and the device disconnected or removed (unless it is apparent or determined that the device has been lawfully installed pursuant to a warrant issued by a Justice under Section 492.1 of the Criminal Code).