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Arrest & Detention – Methods to
Mitigate Litigation
March 2013
Seminar Topics
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Definition of Risk.
Risk Management.
Duty of Care.
Restraint – Industry Standards.
Comparable Standards.
Police Use of Force – Principles.
Restraint – Principles.
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March 2013
Seminar Topics
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Security – Use of Force Application.
Restraint in the Workplace.
Considerations of Restraint.
Tort Considerations.
Restraint Training Considerations.
Citizen’s Arrest & Self-Defence Act (In
Force – March 11, 2013).
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March 2013
Definition of Risk
• Risk = the likelihood of harm or loss
• Risk is calculated by multiplying:
• likelihood that a harm-causing event will occur
(foreseeable risk) x
• the organization’s degree of vulnerability to
that harm x
• the amount/category of harm that would be
caused by that event
(Ontario Trial Lawyers Association)
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March 2013
Definition of Risk Management
• The proactive and systematic application of
the management/ownership policies,
procedures and practices to the tasks of
identifying, analyzing, evaluating,
controlling, monitoring and responding to
RISK.
• Management of Foreseeable
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Risk.
March 2013
Duty of Care
• Particular standard of conduct toward
another person
• With respect to “duty of care” a person may
be subject to liability and accountability
especially when injury is sustained
• Due diligence represents a reasonable
standard of care = “industry related
practices”
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March 2013
Restraint – Industry Standards
• With Respect to Security, there is no industry
standard featuring “physical skills” or training
designed/intended to provide the requisite skills
respecting the physical aspects of arrest and/or
detention.
• Training representing arrest, detention and
restraint that is intended for the security industry is
provided through non-regulated programs that is
best characterized as “industry best practices”.
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March 2013
Comparable Standards
• Law Enforcement (policing & corrections).
• Health Care (patient restraint).
• Police Services governed by the Ontario Police
Services Act.
• Ontario Regulation #926 mandates the following:
- Shall not use force on another person unless first
successfully completed a training course on the
use of force.
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March 2013
Comparable Standards
• Ontario Regulation #926 mandates the
following:
- Training to include: legal requirements, the
exercise of judgment, safety and theories
relating to the use of force and practical
proficiency.
• Ontario Police College provides a 13-week
training program v. a one-week training
program for security.
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March 2013
Police Use of Force - Principles
• The application of physical or implied force
intended to control a person.
• For a lawful purpose.
• Using reasonable response options.
• That is proportional to the person’s
behavior(s).
• Given the officer’s perceptions within the
totality of the circumstances.
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March 2013
Restraint - Principles
• The use of restraining devices (handcuffs) is
based on a persons judgment and discretion
that the circumstances warrant their
application.
• The use of handcuffs must be reasonable
and justified.
• Restraints may be used to prevent the
escape of an arrested person.
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March 2013
Restraint - Principles
• Restraints may be used when a person has
been arrested for an offence involving
violence.
• Restraints may be used when a person
demonstrates or possesses physical skills
and abilities or superior strength.
• Restraints may be used to prevent the
destruction of evidence.
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March 2013
Restraint in the Workplace
• Need to restrain and/or remove
individuals?
• Need to detain and/or arrest individuals?
• Requirement for staff to engage?
• Requirement for staff to utilize restraints?
• Risk to attempting physical control without
the use of restraints?
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March 2013
Purpose Of Restraint
To Control a Subjects Ability
to Resist, Escape, Harm
Themselves or Others and
to Preserve Evidence.
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March 2013
Considerations of Restraint
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Perception of violence in the workplace?
Occupational Health & Safety Liability?
Bill 168 Training Compliant?
Federal Statute Authority?
Occupier Liability Act Requirements?
Tort (Litigation) Liability?
Court defensible response?
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March 2013
Tort Considerations
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Printed Job/Employment Descriptions?
Policies Respecting Restraint/Detention?
Equipment to Protect (Handcuffs)?
Policies Respecting Subject Control and/or
The Removal of Patrons?
• Proof of Training?
• Proof of Testing?
• PSISA Compliance?
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March 2013
Restraint Training
Considerations
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Use of force principles.
Legal authorities.
Crisis / De-escalation training.
Effective communications training.
Documentation principles.
Ethical Means to Restrain – Handcuffs.
Report writing, note taking, evidence and
crime-scene protection.
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March 2013
The Citizen’s Arrest & Self-Defence Act
• Introduced and received first reading on
February 17th, 2011.
• The Bill amends the Criminal Code with respect
to private citizen (and security) powers of
arrest, the ability to use force (self-defence),
and the defence of property.
• Royal Assent – May 1, 2012.
• Into Force – March 11, 2013.
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March 2013
The Citizen’s Arrest & Self-Defence Act
• Section #494(2) of the Criminal Code is
amended and now permits a person to make
an arrest “within a reasonable time after the
offence is committed”.
• An arrest can only be made only if the person
making the arrest believes on reasonable
grounds that is not feasible in the
circumstances for a peace officer to make the
arrest.
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March 2013
The Citizen’s Arrest & Self-Defence Act
• The Bill amends the Criminal Code to simplify
the provisions respecting the defence of
property and persons.
• Sections #34-#37 of the Criminal Code are
repealed and replaced with a single “selfdefence” provision (new section #34) that
applies to any offence.
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March 2013
The Citizen’s Arrest & Self-Defence Act
• Sections #38-#42 of the Criminal Code are
repealed and replaced with a single “defence
of property” provision (new section #35).
• The new section eliminates the current
distinction between the defence of personal
and real property.
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March 2013
Authorized by Law
• Where a statute or act allows a person
to follow a course of action.
• Not to be confused with operational
policy, procedure or best practices.
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March 2013
In Good Faith
• With sincere and honest intention.
• Free from any knowledge of bias or
dishonesty.
• A requirement to lawfully apply force.
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March 2013
Reasonable Grounds
• A set of facts or circumstances (the
situation) that would cause a person of
ordinary care and judgment to make a
decision that goes beyond mere doubt
or suspicion.
• Your personal belief system.
• A basis to describe perception.
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March 2013
Reasonable Time
• Not yet clearly defined.
• Has been interpreted in the US Courts
as:
• “the amount of time necessary to do
whatever was required to be done as
soon as the circumstances reasonably
permitted”.
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March 2013
Revised Citizens Powers
of Arrest
Sec. 494.(1) Arrest without warrant
Anyone may arrest without warrant:
(a) A person whom he finds committing an
indictable offence or;
(b) A person who on reasonable grounds he
believes
(i) has committed a criminal offence and
(ii) is escaping from/freshly pursued by
persons who have lawful authority to arrest.
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March 2013
Sec. 494.(2) Arrest by owner
The owner or a person in lawful possession
of property, or a person authorized by the
owner or by a person in lawful possession of
property, may arrest a person without a
warrant if they find them committing a
criminal offence on or in relation to that
property and:
(a) They make the arrest at that time; or
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March 2013
Sec. 494.(2) Arrest by owner
(b)
they make the arrest within a reasonable
time after the offence is committed and
they believe on reasonable grounds that it
is not feasible in the circumstances for a
peace officer to make the arrest.
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March 2013
Sec. 494.(3) Delivery to peace officer
Anyone other than a peace officer who
arrests a person without a warrant
shall forthwith deliver the person to a
peace officer.
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March 2013
Sec. 494.(4) Delivery to peace officer
For greater certainty, a person who is
authorized to make an arrest under
this section is a person who is
authorized by law to do so for the
purposes of section #25 of the
Criminal Code.
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March 2013
Sec. 25 (1) – Protection of Persons
Acting Under Authority
Every one who is required or authorized by
law to do anything in the administration or
enforcement of the law;
(a) As a private person,
(b) As a peace officer or public officer,
(c) In aid of a peace officer or public officer,
or
(d) By virtue of his office,
is, if he acts on reasonable grounds,
justified in doing what he is required or
authorized to do and in using as much
force as is necessary for that purpose.
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March 2013
Sec. 25 (2) – Protection of Persons
Acting Under Authority
Where a person is required or authorized
by law to execute a process or to carry
out a sentence, that person or any person
who assists him is (while acting in good
faith), justified in executing the process
or in carrying out the sentence
notwithstanding that the process or
sentence is defective or that it was issued
or imposed without jurisdiction or in
excess of jurisdiction.
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March 2013
Sec. 25 (3) – Protection of Persons
Acting Under Authority
A person is not justified for the
purposes of subsection (1) in using
force that is intended or is likely to
cause death or serious bodily harm
unless the person believes on
reasonable grounds that it is
necessary for the self-preservation of
the person or the preservation of any
one under that person’s protection
from death or grievous bodily harm.
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March 2013
Sec. 26 – Excessive Force
Every one who is authorized by
law to use force is criminally
responsible for any excess
thereof according to the nature
and quality of the act that
constitutes the excess.
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March 2013
Revised Criminal Code
Sections
Sec. 34(1) – Defence – Use or Threat of Force
34.(1)
A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is
being used against them or another person or that a
threat of force is being made against them or another
person;
(b) the act that constitutes the offence is committed
for the purpose of defending or protecting themselves
or the person from the use or threat of force; and
(c) the act the act committed is reasonable in the
circumstances.
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March 2013
Sec. 34(2) – Factors
34.(2)
In determining whether the act committed is
reasonable in the circumstances, the court may
consider, among other factors,
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent
and whether there were other means available to
respond to the potential use of force;
(c) the person’s role in the incident;
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March 2013
Sec. 34(2) – Factors
(d) whether any party to the incident used or
threatened to use a weapon;
(e) the size, age and gender of the parties to the
incident;
(f) the nature, duration and history of any relationship
between the parties to the incident, including any
prior use or threat of force and the nature of that
force or threat,
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March 2013
Sec. 34(2) – Factors
(g) the nature and proportionality of the person’s
response to the use or threat of force; and;
(h) whether the act committed was in response to a
use or threat of force that the person knew was
lawful.
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March 2013
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March 2013
Sec. 34(3) – No Defence
34.(3) Subsection (1) does not apply if:
- the force is used or threatened by another person for
the purpose of doing something that they are required
or authorized by law to do in the administration or
enforcement of the law
- unless the person who commits the act that constitutes
the offence believes on reasonable grounds that the
other person is acting unlawfully.
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March 2013
Sec. 35(1) – Defence of Property
35.(1)
A person is not guilty of an offence if;
(a) They believe on reasonable grounds that they are
in peaceable possession of property or are acting
under the authority of, or lawfully assisting a person
whom they believe on reasonable grounds is in
peaceable possession of property;
(b) They believe on reasonable grounds that another
person
(i) is about to enter, is entering or has entered the
property without being entitled by law to do so,
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March 2013
Sec. 35(1) – Defence of Property
(ii) is about to take the property, is doing so or has
just done so, or,
(iii) is about to damage or destroy the property, or
make it inoperative, or is doing so;
(c) The act that constitutes the offence is committed for
the purpose of;
(i) preventing the other person from entering the
property, or removing that person from the
property, or,
(ii) preventing the other person from taking,
damaging or destroying the property or from
making it inoperative, or retaking the property
from that person; and
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March 2013
Sec. 35(1) – Defence of Property
(d) the act committed is reasonable in the circumstances.
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March 2013
Sec. 35(2) – No Defence
35.(2) – Subsection (1) does not
apply if the person who commits
the act that constitutes the
offence does not have a claim of
right to the property and the
other person is entitled to its
possession by law.
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March 2013
Sec. 35(3) – No Defence
35.(3) – Subsection (1) does not apply if
the other person is doing something
that they are required or authorized by
law to do in the administration or
enforcement of the law, unless the
person who commits the act that
constitutes the offence believes on
reasonable grounds that the other
person is acting unlawfully.
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March 2013
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Arrest & Detention – Methods to
Mitigate Litigation
March 2013