Laws, Liability, and Mitigation

Know the laws affecting your work to minimize liability and maximize your mitigation potential. In the whole arena of professional use of force and subject control it is critical to start with knowing your authorities, rights, and responsibilities. Each of these are spelled out in the various laws that affect your professional sector or all Canadians in general.

On the whole, police departments do the most credible job on educating their recruits in these must know areas. Unfortunately even other law enforcement divisions are not as diligent in this area. When it comes to the private sector, security companies, in house security, and entertainment industry security (doormen and bouncers) often receive little to absolutely no training in this regard.

This to me just defies logic. You're going to hire some big burly guy, possibly with an attitude to match, stick him inside your establishment making him responsible for the protection of your license and the safety and well being of all persons in your establishment and he knows....what... about the law?

When this one gets to court the court is understandably going to ask you what you were thinking. Your answer? Something along the lines of "it's what everybody does"...right? How's that sound when you read it? It's not going to sound any better in court.

So suppose you decide, "Alright, I'm going to cover my bases. I'll hire law and security or police foundations students/graduates for my security." Right idea. A couple of problems though. What's a passing mark at College? What's the average retention of learned knowledge 6 months after graduation?

Stats say a 50% retention. So if the person you hired barely graduated and it's 6 months later now...you get the idea. He or she knows just enough to get you and your business in real trouble. Why? Because they think they know much more than they actually remember.

Also Police Foundation students are training to be cops. Their course emphasis is on Police authorities not civilian authorities. This can frequently create problems in civilian enforcement environments.

In most provinces across Canada, the governments are enacting new laws for exactly the above reasons. In particular where the job relates to use of force issues. Your employees or yourself for that matter, need to know exactly which laws they are drawing their authority to act from in each and every incident.

For example, in Ontario many security people get mixed up between the authorities from Ontario's Trespass to Property Act and Ontario's Liquor License Act. You would not believe how many bouncers I've come across who are throwing somebody out of the establishment in their words, "because they had too much to drink, when I told him to leave he wouldn't, so now he's trespassing and I'm evicting him."

I've no need to make this stuff up. It happens every day. In Ontario, the Trespass to Property Act gives you arrest authority, but no release authority. So if he's dealing with a trespasser, his responsibility is to turn him over to the police "forthwith". He can't throw him out. Only the police can release him.

If he's dealing with a Liquor License offense, he has no arrest authority, but he does have the authority to use force for eviction purposes. You can't mix these two up because once buddy gets a lawyer, and many of them these days will. The lawyer clarifies that you told him he was trespassing and then threw him out. The only decision to be made now is how much you're paying. You've already lost.

Now what about security guards not on licensed establishments? Again, if only I had a dime for every one I've come across who grabbed somebody for a "liquor license offense because he's drunk on our property". The Ontario Liquor License Act only applies on licensed premises and has no civilian arrest authority. This guy is dealing with a trespass offense, but again once he or she names the wrong authority you've lost the lawsuit.

Now, let's take officer Johnny B. Goode. A straight "A's" security officer. Knows all those laws. Now he arrests somebody. Everything is air tight. It's a trespass offense, no issues. He calls the police and they're tied up with a major incident so it could be several hours before they can respond. Does security officer Goode have a problem here?

He does if he holds our trespasser for a couple of hours; but he can't legally release him. What would've happened if the police could have responded immediately? Mr. Trespasser would've been properly identified by the police, given a ticket, and sent on his way.

Now what happens if the police can't come for 2 or even 4 hours (and I've seen these kind of delays)? Was our trespasser lawfully detained? Yes, no issue there. But was he unreasonably detained given the nature of his offense and where does that fall with his Charter of Rights? Ah...pay the man again.

You see you can't just know one Act in isolation. That will no longer suffice. You must be able to integrate the Acts and understand the integrated implications upon your authority, rights and responsibilities.

Was there a solution for the unreasonably detained trespasser? Of course there is, but you'd be amazed how many metropolitan centers never think of it. It's done all the time in smaller areas. Did security officer Goode have release authority? No. Who did? The police.

The solution? Wait 20 minutes to half an hour. Call the police back. Tell them it's only a trespass offense and that you're concerned about Charter of Rights violations. Put the subject on the phone with the police. Make sure it's a police officer on the phone and not a civilian dispatcher. A civilian dispatcher has no more authority to release than you do.

How do you know it's a police officer? Get a badge number, name and rank, and "time and numbers". Time and numbers refers to the time the call was logged and the incident number dispatch assigned to your incident.

Now what's the solution? The police officer on the phone has the subject provide you with ID and you verify from the photo ID that the individual is indeed the person on the ID. Now the police can follow up any time. The officer on the phone will trespass the individual (I know you already have, but this is just the format and amounts to the officer repeating your trespass to the subject) and release the subject over the phone. No Charter of Rights violation. Paperwork to follow. No lawsuit and if it is it's frivolous. Now you win.

I could continue to site examples to illustrate the importance of knowing the laws that affect your specific niche in our profession. Knowing and being able to integrate these laws is your simplest and most readily available means to reduce liability and mitigate your potential losses.

We will be adding down-loadable e-books to this website and subjects such as above will no doubt also be discussed on our blog and E-zine. So do check back with us often or subscribe to our blog or E-zine and we will keep you updated as we load fresh material.

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