Conflict management and de-escalation are critical skills for security professionals in Canada and around the world. On top of the many challenges related to ensuring safety and gaining compliance, there are significant potential legal issues to consider.
In this article we will explore liabilities related to criminal law, civil justice, and human rights legislation, as well as the impact of organizational policies that security guards must navigate as they perform their duties. By understanding these factors, security guards can better manage conflicts while minimizing legal risks.
Criminal Liability
The conduct and actions of security guards must align with the Criminal Code of Canada and other federal and provincial statutes to be considered lawful. Any violations, such as excessive force, unlawful detention, or breaches of statutory obligations can result in criminal and other charges against the security guard.
Key Considerations
Use of Force:
Under Canadian law, any authority to use force is provided under the condition that only the minimum level required to control the situation is used. This is known as the principle of proportionality. Section 25 of the Criminal Code outlines the conditions under which force may be legally justified. Section 26 declares that any excessive force may result in criminal charges such as assault.
Detention and Arrest:
While Section 494 of the Criminal Code provides private citizens, including security guards, with an arrest authority, there are several conditions that must be met. If a security guard’s actions violate Section 494, they may face criminal charges for the unlawful detention.
Statutory Compliance:
Along with the obligation to comply with the Criminal Code, security guards must also act in compliance with other laws and regulations, such as provincial security guard acts, provincial offences acts and municipal bylaws. Failure to comply with these requirements can result in criminal and other penalties for both the security guard and their employers.
Examples:
Excessive Force:
A security guard at a shopping mall uses a baton to control and detain a shoplifter who has not displayed physical aggression. This action could be considered excessive, given the level of threat posed, leading to assault charges against the security guard, under the Criminal Code.
Forcible Confinement:
A security guard detains an individual on suspicion of theft (not found committing). This being in contravention of Section 494 of the Criminal Code, could result in the security guard being charged with kidnapping or forcible confinement charges under Section 279.
Civil Liability
Civil liability relates to a security guard’s responsibility for actions that cause harm or loss to others that do not necessarily involve criminal liability. This can lead to lawsuits and financial penalties under the Canadian civil justice system.
Key Considerations
Negligence:
Security guards must exercise reasonable care in the performance of their duties. Failure to take action on a potential threat can lead to claims of negligence, particularly if the neglect results in injury to others.
Breach of Duty:
Results from a security guard failing to fulfill their contractual or statutory duties, leading to harm or damage.
Defamation:
Making false or misleading statements about someone that harms their reputation can lead to defamation lawsuits. It is very important that security guards avoid public accusations without clear evidence.
Examples
Negligence:
A security guard fails to act on reports of suspicious behavior, resulting in a break-in and theft. The property owner may sue for damages due to the guard’s negligence.
Breach of Duty:
A security guard responsible for monitoring video surveillance leaves their post without coverage, and a crime occurs during their absence. This may result in a lawsuit for breach of duty.
Human Rights Considerations
Human rights laws ensure the protection of the fundamental rights and freedoms of groups and individuals. Security guards must ensure that their actions fall within the frameworks of these federal (Canadian Human Rights Act, Charter of Rights and Freedoms) and provincial human rights codes.
Key Considerations
Right to Privacy:
Surveillance and searches of individuals must be conducted with respect to privacy rights outlined in human rights legislation. Unauthorized or invasive searches can lead to human rights violations.
Right to Freedom from Discrimination:
Security guards must treat all individuals fairly, regardless of their age, gender, race, or other protected grounds. If a security guard’s actions are found to be discriminatory, it can lead to claims of human rights violations.
Right to Dignity and Respect:
Security guards have a right to be treated with dignity and respect. So do the people that they interact with. Regardless of the stress and emotional realities of conflict situations, security guards must not act in ways that degrade or humiliate the other person.
Examples
Right to Privacy:
Implementing extensive surveillance, especially in areas where there is an expectation of privacy, such as change rooms, can infringe on privacy rights.
Freedom from Discrimination:
A security guard targets a specific ethnic group for additional screening without any other justification, could be seen as discriminatory under human rights legislation.
Organizational Policies
Organizations must establish clear policies to guide their security operations and ensure compliance with criminal, civil and human rights standards. Security guards must ensure that their actions are in compliance with these policies.
Key Considerations
Training and Education:
Regular training on legal standards, use of force guidelines and conflict management is vital to ensure that security staff are highly competent in their ability to assess situations and make sound decisions.
Documentation:
Accurate and consistent documentation of incidents, investigations and follow-up actions is crucial for legal defence and accountability purposes. Having clear reporting procedures will help ensure that all relevant information is captured.
Internal Reviews:
Regular reviews and audits of policies, changing needs and security best practices can help identify risks, both legal and safety, as well as areas of improvement.
Examples:
Training Programs:
A security company develops and implements a comprehensive training program on conflict de-escalation and legal authorities. This proactive approach helps mitigate legal liability risks and protect their employees by providing clarity, guidance and direction as they perform their security duties.
Incident Reporting:
A security guard is involved in an arrest where the subject received minor injuries. Following the incident, the security guard completed their notes, and a detailed incident report, in compliance with company policy. A lawsuit is subsequently filed by the subject claiming discrimination based on race and excessive force. In court, the judge reviews the report, which states that the security guard approached and arrested the plaintiff because the guard observed them remove an item from a shelf, conceal it in their pocket and exit the store. When approached for arrest, the plaintiff attempted to run away, tripping and falling to the ground, hitting their head on the pavement. The security guard quickly applied handcuffs and assisted the plaintiff to their feet, completing the arrest. Through the report, the judge can see that there was no discrimination, and the injury was sustained as a result of the plaintiff’s actions, not the security guards.
Conclusion
In the course of performing their duties, security guards are at risk of criminal, civil and human rights liability. They must have a thorough understanding of the relevant laws and other legislation in order to mitigate these risks. A clear understanding of, and adherence to company policies will help guide them in their decision-making. While assessing situations to determine appropriate responses, security guards must consider their authorities and obligations in law, while managing conflicts safely and effectively.
Continuous education and training is essential for all security guards. Consider enrolling in our training programs to ensure that you have the knowledge and skills to perform effectively, while managing the many liability risks faced by security professionals.
References
Canadian Human Rights Commission. (n.d.). Human rights in Canada. Retrieved August 3, 2024, from https://www.chrc-ccdp.gc.ca/en/about-human-rights/human-rights-canada
Department of Justice Canada. (n.d.). Constitution Act, 1982. Retrieved August 3, 2024, from https://laws-lois.justice.gc.ca/eng/Const/page-12.html
Department of Justice Canada. (n.d.). Criminal Code (R.S.C., 1985, c. C-46). Retrieved August 3, 2024, from https://laws-lois.justice.gc.ca/eng/acts/c-46/