“Can you use a GPS tracker to catch my partner cheating?” the client often asks. Our answer: Maybe.
As any private investigator knows, cases of suspected infidelity can be emotionally charged. Clients want answers now, and many of them harbor wild beliefs about what techniques investigators are willing and able to deploy to get those answers.
These beliefs seem to emanate from what people have seen in movies and on TV. While there may be some crossover between the actual tactics professional investigators use and those portrayed on the big screen, the public still widely misunderstands where the law draws the line on this range of activities.
When clients call to request an infidelity investigation, one of the first questions they usually ask is: “Can you use a GPS tracker to catch my partner cheating?” The answer to this question is neither a yes or no, but rather, a maybe.
The Law in Canada
While a GPS tracker placed on a vehicle is an incredibly helpful tool for covert surveillance, this tool, when improperly deployed, can result in serious legal consequences for both the client and investigator. Here’s the Criminal Code of Canada’s provision pertaining to the approved use of GPS Tracking Devices — Section 492.1(1) provides that:
A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament and that tracking the location of one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.
The issue with the above provision is that it only applies to situations in which a warrant has been issued to a peace officer or public officer; it does not apply to a private investigator. Prima facie, it would appear that this tool could never be legally deployed by a private investigator.
In reality, it’s not that simple; as the saying goes, the devil is in the details.
An Opening
Partners often share a car. Here, opportunity lies: Let’s say both partners use a vehicle, but the client is the sole registered owner. If the client/vehicle owner gives a private investigator permission to attach a GPS tracking device to the vehicle, this is a legal avenue for deployment of a tracker.
That said, there’s a due diligence requirement here: the investigator must ensure that the client does not misuse the tracker. The Criminal Code of Canada provides the following prohibition, in Section 430.1 (c) and (d), which includes the unauthorized use of GPS Tracking Devices:
Every one commits mischief who wilfully obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
While a mischief charge probably doesn’t sound like a big deal, a conviction is serious enough to disqualify a person from holding a private investigator’s license in Canada — in addition to a possible sentence of a jail term, a fine, or combination of both. These sanctions are in addition to potential civil claims that could be launched by the victim.
Best Practices
Our firm is very cautious when it comes to deploying GPS trackers. Before we agree to use one, our firm requires a copy of the current registration for the vehicle, listing the client as the sole owner; a signed waiver of liability in the event the investigator has been provided with falsified documentation by the client, and a contract signed by the client stating that they agree not to move or tamper with the device attached to the vehicle. As an added layer of security, I use trackers equipped with a tamper-alert button.
If you do choose to deploy this tool in an investigation, add a clause to your client contract stating that no location data will be provided until the investigation is concluded, with all information included in the final report. Failure to include such a clause can prove disastrous to both the integrity of the investigation as well as the safety of the subject being investigated. As I mentioned earlier, these investigations are often emotionally fraught. Some clients let their curiosity — and anger — get the better of them. In such cases, drama often ensues.
To avoid unnecessary drama, protect the investigation, avoid legal trouble, and safeguard the subject, abide by the guidelines I’ve mentioned. Follow Canadian law and add that aforementioned clause to your contract. You’ll never regret doing it by the book.
About the author:
Rod Thompson is a licensed private investigator and president of Metro Surveillance and Investigations Limited, based in St. John’s, Newfoundland, Canada. Rod holds a Bachelor’s Degree in Police Studies and a Certificate in Criminology from Memorial University of Newfoundland. Readers can learn more about Rod and his company by visiting www.metroinvestigations.ca
