3.4 Ethical Reasoning, Duty of Care & Decision-Making
Key Takeaways
Syllabus section 6 defines duty of care as what a reasonable person should do in a particular situation, and investigators owe care to clients, subjects, the public and themselves.
The ministry's study guide lists decision skills such as separating relevant from irrelevant facts, weighing time-frame and risk, prioritizing, drawing on law and controlling access to confidential information.
Private investigators must comply with both the Code of Conduct's equal-treatment rule and the Ontario Human Rights Code.
Entrapment under R. v. Mack concerns state conduct, but the ministry's undercover guidance forbids investigators from offering employees money to steal or encouraging any breach of law.
A defensible decision is lawful, within the client's mandate, proportionate to the risk of harm, explainable under oath and recorded with reasons.
Syllabus section 6, "Principles of ethical reasoning and decision-making," gives two in-class hours to applying the Code of Conduct, the concept of duty of care, and practical decision-making. The ministry's study guide adds the Ontario Human Rights Code and a list of decision-making skills that test questions often turn into scenarios. This section brings those pieces together.
What the Syllabus Requires
The minimum requirements for section 6 are to:
- discuss the relevant components of the Code of Conduct and explain the meaning of duty of care;
- apply principles of decision-making, from separating relevant facts to deciding who may access confidential information; and
- recognize ethical dilemmas and issues of diversity, cultural differences and contemporary social problems, such as stereotyping and discrimination.
The syllabus also names impartiality, conflict of interest and entrapment as scenarios that call for careful decisions.
Duty of Care
The syllabus describes duty of care as what a reasonable person should do in a particular situation. In law it is the first element of negligence: a person owes a duty to take reasonable care not to cause foreseeable harm to people closely and directly affected by their actions.
For an investigator, duty of care runs in several directions:
| Who is owed care | What reasonable care looks like |
|---|---|
| The client | Competent, honest work within the mandate; accurate reports; safeguarding the client's information |
| The subject | Lawful methods only; accurate identification before reporting or serving; no reckless disclosure of personal information |
| The public | Safe driving, no confrontation, no actions that put bystanders at risk |
| Colleagues and the agency | Honest notes, sharing safety information, following employer policy |
| Yourself | Not taking unreasonable risks; disengaging when danger outweighs the value of the evidence |
Example. An investigator is asked to confirm the address of a debtor with a very common name. Reporting the first matching address without checking the date of birth or a second source risks the wrong person being served, sued or confronted. A reasonable investigator corroborates before reporting. That is duty of care in practice, and it also protects the agency from a negligence claim.
A Practical Decision-Making Framework
The ministry's study guide lists the decision-making skills investigators should be able to apply. Grouped into a sequence, they look like this:
1. RECOGNIZE - Is there an ethical or legal issue here? Who is affected?
2. SORT FACTS - Separate relevant from irrelevant facts and details
3. CHECK LAW - Draw on legislation and the Code of Conduct
4. WEIGH RISK - Judge the time-frame, risks, facts and potential hazards
5. PRIORITIZE - Rank tasks and decisions by urgency and importance
6. DECIDE - Make a sound, defensible decision supported by facts
7. NEXT STEPS - Prepare the next logical steps for the task
8. RECORD - Note what you decided and why
Applying the framework
Scenario: a client wants a home address. A new client asks you to find where their ex-partner lives "to return some belongings." The client cannot explain why a lawyer or police cannot handle it and offers a cash bonus for speed.
- Recognize: locating a person can enable harassment or a breach of a court order.
- Sort facts: "return belongings" is not a reason that requires the client to know the address personally.
- Check law: Criminal Code s. 264 (criminal harassment); the Code's duty to comply with all laws; PIPEDA's reasonable-purpose test.
- Weigh risk: serious potential harm to the subject, and liability for you.
- Decide: decline, or offer a lawful alternative such as arranging delivery through counsel without disclosing the address.
- Record: note the request and your refusal in the intake file.
Scenario: who may see confidential information. A building manager asks to see your surveillance photos of a tenant "for our records." The manager is not your client. The Code makes information confidential except where disclosure is required as part of the work or by law, so you refer the request to your client and disclose nothing.
Recognizing Patterns and Anomalies
Syllabus section 6 links decision-making to observation skills: recognizing patterns (situational awareness), recognizing what is typical, and detecting anomalies. An experienced investigator learns the normal rhythm of a street, a workplace or a subject's routine, so that departures from it stand out: a car parked in a new spot, a subject leaving at an unusual hour, a witness whose story suddenly changes. Good judgment depends on reporting anomalies as facts rather than turning them into assumptions.
Prejudice, Stereotyping and Discrimination
Legal duties
- Code of Conduct s. 2(1)(d) requires equal treatment without discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
- The ministry's study guide adds that investigators must comply with the Ontario Human Rights Code, a provincial law that gives everybody equal rights and opportunities without discrimination.
The kinds of prejudice to recognize
The ministry's study guide lists prejudice arising from differences in ethnic background, education, religion, gender, sexual orientation, and physical or mental disabilities. Each can distort an investigation:
| Bias | How it distorts the work |
|---|---|
| Stereotyping a neighbourhood | Assuming wrongdoing because of where someone lives |
| Confirmation bias | Noticing only facts that fit the client's theory |
| Credibility bias | Believing or doubting a witness because of accent, education or disability rather than the content of their account |
| Cultural misreading | Treating avoided eye contact or a particular gesture as evasive when it may be cultural |
Practical safeguards
- Base surveillance and inquiries on the documented mandate and objective facts.
- Describe people in reports in neutral, physical terms needed for identification.
- Test your conclusions: "Would I reach the same conclusion if the subject were someone else?"
- Arrange interpreters or accommodation for witnesses with language barriers or disabilities.
Recurring Ethical Dilemmas
Impartiality
You serve the client by finding the truth, not by confirming the client's suspicion. Report favourable and unfavourable observations with equal care.
Conflict of interest
Disclose any personal, financial or prior-client connection to your employer, and withdraw where the connection could compromise impartiality or confidentiality. Section 3.1 gives examples.
Entrapment
In Canadian law, entrapment is a doctrine about state conduct, set out in R. v. Mack, [1988] 2 S.C.R. 903. A court may stay charges where police, or someone acting for them, offer an opportunity to commit an offence without reasonable suspicion, or go beyond offering an opportunity and induce the offence. A private investigator acting for a private client is not usually "the state." Even so:
- if police direct or instigate your actions, you may be treated as their agent (see section 6.3);
- inducing someone to commit an offence they would not otherwise commit destroys your credibility and may itself be an offence, such as counselling under Criminal Code s. 22; and
- the ministry's undercover guidance is explicit: investigators should not approach employees and offer them money to steal, and should not encourage or assist any breach of law, policy or company rules.
Truthfulness and cover stories
Lawful covert work involves not revealing that you are an investigator. Code s. 2(3) allows a licensee to conceal their identity as an investigator to carry out duties. It never permits claiming to be police (PSISA s. 39, Criminal Code s. 130), lying under oath, or deceiving someone into handing over protected records (see section 10.2).
Quick Self-Check Before Acting
- Is it legal? Consider statutes, the Code of Conduct and court orders.
- Is it within the client's lawful mandate?
- Could it harm the subject, a bystander or me, and is that harm reasonable?
- Would I be comfortable explaining it under oath?
- Have I recorded the decision and the reasons?
If any answer is "no" or "not sure," stop and consult your supervisor before proceeding.
Which statement best reflects the meaning of "duty of care" as described in the Ontario private investigator training syllabus?
A guarantee that the client will receive the result it wants
What a reasonable person should do in a particular situation
The investigator's duty to obey every instruction from the client
A rule that applies only to physical injuries caused while driving
A building manager who is not your client asks to see your surveillance photos of a tenant "for our records." What is the correct decision?
Share the photos, since the manager owns the building where they were taken
Share only photos that do not show the tenant's face
Post the photos to the agency's secure client portal so the manager can view them
Decline, and refer the request to your client, since sharing it is not part of the work
During an undercover theft investigation, a client suggests the investigator offer a co-worker cash to steal stock "to see who bites." How should the investigator respond?
Refuse, because the ministry's guidance forbids offering employees money to steal
Agree, because entrapment rules apply only to police officers and not to private investigators
Agree, but only if the co-worker was already on the client's written list of theft suspects
Agree, provided the conversation is recorded under the one-party consent rule
Sections you finish are checked off in the contents.