Law Times

Page 10 July 21, 2014 • Law Times www.lawtimesnews.com Are drones the next tool for private investigators? By arshy mann Law Times hen Amazon. com Inc. chief executive of- ficer Jeff Bezos dramatically predicted on 60 Minutes that within a few years drones would be zigzagging across cities delivering pack- ages, many people took notice. Up until that point, most peo- ple only associated drones, also known as unmanned aerial ve- hicles, with the U.S. military. But unmanned aerial vehicles have a number of domestic uses and are already revolutionizing many industries, including film- making and agriculture. Private investigation may be next. However, a number of issues, including regulatory delays, pri- vacy concerns, and the lack of clear guidance from the courts, mean most private investigators remain leery of using drones, at least for the moment. Soon after the Bezos an- nouncement, Denis Gagnon, president of BCS Investigations, a private investigation firm based in Vancouver, began talk- ing to a professor at the British Columbia Institute of Technol- ogy who was working on un- manned aerial vehicles. "One of the professors there was developing a prototype, and I was going to use it," says Gagnon. But Gagnon soon discov- ered that regulations around the private use of drones remain onerous in Canada. "You need to be licensed with Transport Canada, which I didn't know at this time," he says. According to an article by Sarah Fitzpatrick and Kenneth Burnett, lawyers with Miller Thomson LLP, Canada has had a regulatory framework for com- mercial use of unmanned aerial vehicles in place since 1996. People f lying a drone must have a special f light operations certificate from Transport Can- ada and must apply for it at least 20 days in advance. However, drones must remain within eye- shot of the user and each and every f light has to have an ac- companying certificate. Gagnon says that unless these requirements change, drones won't make an effective tool for private investigators. "I can't see myself applying for a permit ev- ery time I'm going to run a drone. That would be just impossible," he says. "We need to be able to adapt to each situation very quickly when we're working surveillance." However, if Transport Cana- da were to make the regulations less burdensome, Gagnon sees a large array of potential uses for unmanned aerial vehicles. "It would be a fantastic tool," he says. "A lot of the surveillance that we conduct is in remote areas like a farm or a rural property. You can't sit there working surveil- lance because it's too obvious." One of the biggest advan- tages drones could provide is getting visual evidence a party could present in a court case. Gagnon gives the example of an internal theft issue where employees are stealing goods from a shipyard. "We would be able to run a drone and be able to observe what's going on in the shipyards, which you can't really drive in right now," he says. "But the nice thing is we could drop in close enough and zoom in on the labelling on the container." The drone would then be able to covertly follow the container wherever it went all the while sending a live video feed to a pri- vate investigator's computer. Gagnon says that while private investigators have a number of sophisticated technological tools at their disposal, most of them require operators to be carrying them on their person. That makes drones especially valuable. As with many new technolo- gies, however, privacy issues are inevitably going to become a concern. For instance, if some- one is using a drone to follow a target in a car with someone else in it, would the investigator be able to record that person as well? Peter Grace, president of Titan Investigations Inc., a private in- vestigation firm based in Whitby, Ont., says he hasn't heard of any investigators using drones. But Grace suspects privacy is- sues may end up smothering their usefulness. He points to closed- circuit TV cameras some private investigators used to use on sur- veillance targets. New rules, how- ever, required them to blur the faces of any third parties caught in the images, making it onerous for them to use the technology. "I don't know of anybody that still uses those," says Grace. Gagnon, who says he also doesn't know of any private inves- tigators currently using drones, worries that if they begin prema- turely trying them out or if Trans- port Canada gets the regulations wrong, there could be a public backlash against using them. In addition, he worries drones could make it more difficult to do his job if they got into the wrong hands. "I don't want the criminals to be able to watch me when I'm working surveillance," he says. "So counter-surveillance and es- pionage are going to be problems." Gagnon is hopeful private investigators will be able to get an exemption from Transport Canada for their work. But he sees legal action as inevitable. "We're going to have a legal battle because the lawyers aren't going to like having that tool in our arsenal. They already don't like a lot of the tools we use al- ready, never mind one more tool." Gagnon is optimistic about the potential uses of drones but is taking a wait-and-see approach. "It's a very new tool and when you have a very new tool, you have no case law, no precedents, and I sure don't want to be the first precedent," he says. "Drones are still, excuse the pun, up in the air at this point." LT W FOCUS The wait is almost over. Soon we'll be delivering a Canadian version of Practical Law. Practical, up-to-date content designed for the front-line Canadian lawyer. Watch for it. Learn more at www.carswell.com/practicallawcanada IT'S PRACTICALLY HERE COMING SOON – PRACTICAL LAW CANADA 00218KE-A43429 Untitled-3 1 14-07-14 9:52 AM Canadian regulations remain a significant barrier to more widespread use of drones. Photo: Robert Martel/Shutterstock

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