For Better or Worse?

1. For Better or Worse? Legal Liability Exposure for Security Employers under the PSISA Steve Summerville

8. Part 1 Risk Management Refresher

9. Definition of Risk • Risk = likelihood of harm or loss • Risk is calculated by multiplying: • (likelihood that a harm-causing event will occur) x • (the organization’s degree of vulnerability to that harm) x • (the amount of harm that would be caused by that event)

10. Categories of Harm or Loss • Loss of income / revenue • Increased cost / expenditure • Damage to or loss of assets • Lost time / lost productivity • Loss of reputation • Loss of ability to conduct business

11. Definition of Risk Management • The proactive and systematic application of management policies, procedures and practices to the tasks of identifying, analyzing, evaluating, controlling, and monitoring risk.

12. ASTRA • Risk Avoidance • Risk Spreading • Risk Transfer • Risk Reduction • Risk Acceptance

13. Categories of Legal Risk • Civil liability • Contract / commercial / property • Damages ($), specific performance • Tort liability • Intentional torts • Occupier’s liability / negligence • Damages ($) – special / general / punitive • Human rights • Charter / OHRA • Damages ($)

14. Categories of Legal Risk • Criminal culpability for negligence • Criminal negligence • Bill C-45 (Westray Bill) • Criminal culpability • Imprisonment, fines • Employees, supervisors, officers, directors • Administrative law • Refusal, suspension, revocation of licensing • Administrative fines • Proof of civil liability

15. Administrative Statutes • Employment Standards Act • Occupational Health and Safety Act • Liquor Control Act • Gaming Control Act • Private Security and Investigative Services Act (PSISA)

16. Part 2 Overviewof the PSISA

17. Proprietary Licensing • Proprietary security officers • Loss Prevention Officers, door staff • Corps of Commissionaires • In-house investigators • Registration of non-licensed businesses • August 23, 2008 • Portability

18. Tiered Licensing • Tier 1 Basic • Tier 2 “Advanced” • Use of force (By sector? Spring 2009?) • Others? • Tier 3 (Tier 2A?) Specialized • Handcuffs • Batons • Firearms • Dogs

19. Basic Officer Training • Pre-licensing requirement • Guidelines coming this month • Predictable content • No prescribed curriculum • Instructor approval process – soon? • Delivery by 3 categories of “schools” • Exemptions based on experience

20. Basic Testing • Independent testing agency • Multiple choice test • 60-120 minutes? / 50-100 questions? • 75% pass mark? • Exemptions will have to challenge • Challenge writers will only get 1 chance • No provision (yet) for oral exams

21. Specialized Training • Handcuffs, batons, dogs, guns • Guidelines this month? • Instructor approval – OPC course? • Annual re-certification • Testing and evaluation?

22. Training / Testing Timeline • Proprietary / Corps licensing by Aug 23 08 • Training requirement Nov 30 08 • Implementation through annual renewal • All officers trained tested by end of 2009 • Tier 2 training requirement • Annual re-cert on specialized

23. Recordkeeping • Applies only to licensed businesses • Risk assessments for batons • Handcuff / baton training records • Equipment log • All officer notes, reports, videos, etc. • Use of force reports

24. Other Provisions • Clean criminal record • Uniforms & vehicles • Prohibited terminology • Officer identification requirements • Code of conduct • Public complaints process

25. Part 3 Liability Exposure Under the PSISA

26. Question How will the implementation of the provisions under the PSISA and its Regulations effect my level of exposure to legal liability?

27. Answer The provisions under the PSISA “create”risk in 3 ways: • By creating new “opportunities” for non-compliance. • By establishing new (higher) standards of diligence by which organizations may be judged in tort law. • By compelling organizations to take on the risks inherent in the delivery of training

28. Opportunities for Non-Compliance • New rules = new opportunities for non-compliance • >60 specific offences officers can commit under PSISA and Regulations • Corporate fines to $250,000 • Training, record-keeping, supervision, discipline

29. Raising the Bar • Due diligence = reasonable standard of care = industry standard • By definition, regulatory standards represent minimum standards • Regulatory standards establish “new normal” • Voluntary compliance

30. Part 4 Training That Makes Things Better, Not Worse

31. Duty of Care • Particular standard of conduct toward another person • May be subject to liability to another to whom the “duty of care” is owed for an injury sustained by the other person

32. Resistance Management • LCBO “You Tube” incident • Perception of violence? • Court defensible response? • Perception vs. reality? • Opinion vs. expertise?

34. Documentation Principles • Compliance with Recordkeeping Requirements for Business EntitiesOR #434/07 • Each licensed employee involved in any of the on-the-job adjacent incidents must complete a separate form • Uses handcuffs, a baton or any other weapon • Uses any other kind of force • Is accompanied by a dog that attacks a person

35. Documentation Principles • Signature required by authorized representative of the licensed employee • Signature required by the licensed employee involved in the incident • Retention – 4 years or longer as required

36. Documentation PrinciplesPerception • Strength / fitness levels • Experience • Training / skill levels • Fear • Social training / responses

37. Documentation PrinciplesPerception • Fatigue • Injuries • Stress

38. Documentation PrinciplesTactical Considerations • Disengage / Consequences • Engage / Consequences • Uniform / Equipment • Backup available

39. Documentation PrinciplesUse of Force Response Options • Presence Your presence can affect both the subject and the situation Visible signs of authority, e.g. uniforms, can alter a subject’s behaviour

40. Documentation PrinciplesUse of Force Response Options • Communications Verbal and non-verbal techniques may control and / or resolve a situation

41. Documentation PrinciplesUse of Force Response Options • Physical control • Soft techniques are control orientated with lower probability of causing injury • Hard techniques are intended to manage a subject’s behaviour / allow application of a control technique & have a higher probability of causing injury

42. Documentation PrinciplesUse of Force Response Options • Intermediate weapons involves the use of a less-than-lethal weapon that is not intended to cause injury or death, i.e., impact weapon and aerosols

43. Documentation PrinciplesUse of Force Response Options • Lethal force involves the use of any weapons or techniques that are intended to, or are reasonably likely to cause serious bodily harm or death

44. Training Due Diligence • Use of force principles • Crisis / De-escalation training • Effective communications training • Documentation principles

45. Trainer Protocols Checklist • Background in Adult Education • Lesson plan & course training standards • Subject matter expertise • Experience in judicial procedures • “Your” legal team’s approval

46. Steve Summerville, President Stay Safe Instructional Programs stevesummerville@rogers.com 416-318-8299