Focus On Series
.
Guard Training and Use of Force
Speaker: Michael D. Burgess
C.E.O. and Managing Director of M.D. Burgess And Associates Inc
Phone: (519) 338-1121
Toll Free: 1.866.295.2500
Email: mike@burgessandassoc.com
Webpage: www.BurgessAndAssoc.com
www.SecurityTrainngSupport.com
www.MDBurgessOnline.com
Copyright M.D. Burgess And
Associates Inc 2014
Overview
Where are we now?
The pain of the past and the impact today.
Change is Inevitable.
How to avoid getting “blindsided” by it.
Problems with Due Diligence and
“Best Practices”
Training and the realities of modern
security.
Copyright M.D. Burgess And
Associates Inc 2014
The Challenges
“Audits/reviews of security operations.” Who
should do them, how should they be done,
where do you get input, what is valid and what
is not?
Implementing Change - Who should be trained,
how should this be done and to what standard?
Accountability – To who and for what reasons?
How do we “Lead in Times of Rapid Change?”
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You don’t keep your habits….
…your habits keep you.
Definition of insanity:
Doing the same thing over and over
again… (because that’s the way its always
been done,) …then expecting a different
result.
Copyright M.D. Burgess And
Associates Inc 2014
Where are you now?
“The Pain of the Past.”
“Know thyself.” - Plato.
Evidence of the pain?
1. The “Shand” case, Asante Mensah case
2. Insurance companies demanding more due diligence.
Vetting of certificates and programs are the new norm.
3. New Provincial Legislation & Regulations enacted that
clashed with previous policies and challenged previous
training programs.
4. Lack of mandatory refresher/recertification in core
competency skill sets for security. (Academic and physical
intervention –specialty skills.)
5. Lack of standardization of training programs.
Copyright M.D. Burgess And
Associates Inc 2014
Problems with “Best Practices”
Christopher Columbus and his paradigm in 1492.
Columbus believed that if he
sailed west he would arrive in
India. His actions flowed from
his view of the world. Was it
contrary to the rest of the world
at the time?
His greatest challenge? Recruiting crew.
“Best practice at the time was…
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Associates Inc 2014
Problems with “Best Practices”
“Best practices” cannot be simply transported from
one location or company to another, nor one
country or one sector to another then applied in
‘cookie-cutter’ fashion.
FACT: Police practices are not always valid in the
security work environment no more than the
practices of a busy mall can be applied to a
quiet one. What may be “court/medically
acceptable in the U.S. is not always acceptable
here.
Copyright M.D. Burgess And
Associates Inc 2014
Problems with “Best Practices”
Many of the “processes” being championed are
examples of successful practice, but they are far
from best practice. There is no room for blind
ignorance in our field, the stakes are too high.
‘Best practice’ does not really exist. What we
rely on to heavily is more appropriately called
“successful practice”…but remember this;
BEST PRACTICES ARE NOT LAW! In a
courtroom and under the legal microscope,
case law and legislation trumps “best
practices” every
time.
Copyright M.D. Burgess And
Associates Inc 2014
Problems with current “Best
Practices”
Available Training vs. The Realities of Modern Security
FACT:
There is currently an “academics only”
approach by the Provincial licensing bodies in
Canada.
There is still, as of today, except in B.C., no
mandatory requirement for physical skills/use of
force or handcuff training. Worse, there is no
requirement for “refresher” or “re-certification”
testing in order to renew a security guard license.
Copyright M.D. Burgess And
Associates Inc 2014
Problems with “Best
Practices.”
Available “Training” vs. The Realities of Modern Security
FACT: Certificates without substance will not
withstand court scrutiny.
Programs without course training standards and
appropriate evaluation processes, and/or without
Canadian vetted instructor credentials, is like
handing a blank cheque to a good litigation lawyer.
BEWARE OF CERTIFICATE COLLECTORS!.
Copyright M.D. Burgess And
Associates Inc 2014
“The Solution”
“Those who do not learn the lessons of the past,
are destined to repeat them.”
Due Diligence Warning:
One civil case could have paid for your all
training programs and time spent on due
diligence for years!
Copyright M.D. Burgess And
Associates Inc 2014
“The Challenge”
“If the ship misses the harbour it is seldom the harbours fault.”
Leading through Times of Change.
Working within new paradigms.
How do you fill the gaps you identify?
“Nothing inspires genius and creative
thinking like a tight budget and new
mandatory standards.”
Mike Burgess, M. D. Burgess And Associates Inc.
Copyright M.D. Burgess And
Associates Inc 2014
Legal Update
Arrest and the Use of Force
Amendments to the Criminal Code
Sections on Citizen's Arrest, Defences of
Property and Persons.
Short Title: Citizen's Arrest and Selfdefence Act
Royal Assent Granted June 28, 2012
Copyright M.D. Burgess And
Associates Inc 2014
Overview of what was replaced.
The Citizen’s Arrest and Self-defence Act C-26 has replaced
the present Criminal Code sections 34 to 42:
Self-defence against unprovoked assault (s.34),
Self-defence in case of aggression (s.35),
Provocation (s.36), Preventing Assault (s.37),
Defence of personal property (s.38),
Defence with claim of right (s.39),
Defence of dwelling (s.40), Defence of house or real property
(s.41), and Assertion of right to house or real property (s.42).
with the new Defence of Persons (s.34) and Defence of
Property (s.35).
The Citizen’s Arrest and Self-defence Act also has amended s.
494(2) of the Criminal Code.
(Citizen’s
Copyright M.D.
Burgess Andarrest on or in relation to
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property.)
Amendments to C.C. 494(2)
New section 494(2) reads:
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
(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.
Copyright M.D. Burgess And
Associates Inc 2014
Amendments to C.C. 494(2)
1. What is a “reasonable time” after the offence is
committed?
2. What are “reasonable grounds for believing
that it is not feasible in the circumstances” for a
peace officer to make the arrest?
The amendment does not provide specific
answers, however….
Copyright M.D. Burgess And
Associates Inc 2014
Effect on Security Personnel &
Operations
Security guards are NOT given the power to arrest
on “reasonable grounds” by the amendment.
The amendments does NOT broaden the powers of
arrest of security guards and make their powers
similar to that of a peace officer under section 495
by permitting an arrest on reasonable grounds at
some point later.
Copyright M.D. Burgess And
Associates Inc 2014
Effect on Security Personnel &
Operations
The amendment is restricted to criminal offences
“on or in relation to property.”
“On or in relation to property is about impact not
geography.
Many guards become overly paranoid about
property boundary lines when they need to be more
cognizant of the impact the event is having on the
people coming and going from the property they are
Copyright M.D. Burgess And
guarding.”
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Effect on Security Personnel & Operations
This also does NOT alter/impact the definitions of
“fresh pursuit.” This issue of “fresh pursuit” and
assisting other security/loss prevention personnel
with their arrests, is another situation that attracts
unnecessary liability.
Copyright M.D. Burgess And
Associates Inc 2014
Effect on Security Personnel &
Operations
The amendment does not change the definition of
“finds committing” in s. 494. It does not, nor ever
has, equated the “real time” viewing of a crime-inprogress on a CCTV surveillance system with the
eyewitness viewing of the crime at, or near, the crime
scene by a security guard.
Guards must witness criminal offences in person in
order to effect an arrest.
CCTV cameras do NOT give security “reasonable
grounds” for arrest. Police can make arrests using
CCTV alone, however security cannot.
Copyright M.D. Burgess And
Associates Inc 2014
The Effect of the Changes to the
Criminal Code Use of Force
sections/authorities
on Security Operations & Training.
Copyright M.D. Burgess And
Associates Inc 2014
The Citizen’s Arrest and Self-defence Act
replaced Criminal Code sections 34 to 42.
All these sections have been repealed and replaced.
Self-defence against unprovoked assault (s.34),
Self-defence in case of aggression (s.35),
Provocation (s.36), Preventing Assault (s.37),
Defence of personal property (s.38),
Defence with claim of right (s.39),
Defence of dwelling (s.40),
Defence of house or real property (s.41), and
Assertion of right to house or real property
(s.42).
Copyright M.D. Burgess And
Associates Inc 2014
Plainly said, the change place authorities into two
broad sections; defence of people and defence of
property.
The “right of response,” is not an unlimited one. A
person who uses force must do so in a measured
way that is necessary and proportionate to the threat.
Only an amount of force that is “reasonable in all the
circumstances” can be justified....and now you must
fully explain what you have done and why, or else!
The days of “as much force as necessary” and “one
level higher,” force plus one,” etc are all relics of the
past and no longer acceptable in most situations the
security world.
Copyright M.D. Burgess And
Associates Inc 2014
DEFENCE OF PEOPLE
Under the new legislation, section 34, Defense
of People, is now a reverse onus situation.
Persons will NOT be guilty of an offence if:
1. They believe on reasonable grounds that force, or
a threat of force, is being used against them or
someone else,
2. The actions that constitute the offence are
committed for the purpose of defending or
protecting themselves or the other person AND
3. The act committed is reasonable in all the
circumstances.
Copyright M.D. Burgess And
Associates Inc 2014
34(2) In determining whether the act committed is
reasonable in the circumstances, the court
shall 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;
(d) whether any party to the incident used or
threatened to use a weapon;
Copyright M.D. Burgess And
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34(2) In determining whether the act committed is
reasonable in the circumstances, the court may
consider, among other factors,
(e) the size, age, gender and physical capabilities of the
parties thereto;
(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; any history of interaction or communication
between the parties to the incident,
(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.
Copyright M.D. Burgess And
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DEFENCE OF PROPERTY
35. (1) A person is not guilty of an offence if
(a) they either 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,
(ii) is about to take the property, is doing so or has just
done so, or
(iii) is about to damage
destroy
the property, or make it
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inoperative, or is doing
DEFENCE OF PROPERTY
35. (1) A person is not guilty of an offence if
(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
(d) the act committed is reasonable in the circumstances.
Copyright M.D. Burgess And
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“Reasonable” Use of Force- Considerations
A citizen’s arrest is a very serious and
potentially dangerous undertaking. Unlike a
police officer, private security guards,
(citizens) are neither tasked with the duty to
preserve and maintain public peace, nor
generally speaking, properly trained to
sufficient levels to apprehend suspected
criminals.
Copyright M.D. Burgess And
Associates Inc 2014
The “two step” test.
“Reasonable force” in the context of a
citizens arrest, will have regard not only to
what force is necessary to accomplish the
arrest, but also to whether a forcible arrest
was in all the circumstances a reasonable
course of action in the first place.
This is the “two step” test used by the
court.
Copyright M.D. Burgess And
Associates Inc 2014
The Impact on Trespass Legislation
One of the most abused sections of the Criminal
Code within security applications has been the
misunderstanding over the, now repealed, s41.
Guards mistakenly believed that they could simply
use force to eject someone who would not leave a
property instead of making an arrest if warranted
under Trespass legislation.
This section is gone, but the practice remains
....and it is inappropriate bordering on illegal.
Copyright M.D. Burgess And
Associates Inc 2014
Trespass as an offence
Where does the authority come from in
law to use force to make a citizen’s arrest
under Provincial trespassing laws?
Remember: Trespassing is NOT a criminal
matter. It is always best handled by a
means short of arrest!
Copyright M.D. Burgess And
Associates Inc 2014
Trespass and “Defense of Property.”
There is nothing more implied in section
35 than is written there. You cannot read
authorities into the law that are not clearly
spelled out there.
Defence of Property is now reverse onus.
You must explain to the court why your
actions were necessary first before
justifying any uses of force to eject. Fail in
your reasoning and the results are that
you’ll probablyCopyright
be M.D.
charged
with assault.
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Trespass and “Defense of Property.”
Where Provincial legislation within legislation
specifically outlines the scope of your
authority, you are not permitted to exceed it
by invoking provisions of the Criminal Code or
Common Law.
All the court decisions underline the same
caution: Do not take law into your own hands
if it is more prudent to wait or proceed by
other, less violent, means.
Copyright M.D. Burgess And
Associates Inc 2014
The bottom line on trespassing
T.P.A. arrests are, in most cases, unnecessary
and risky in that they can lead to more violent
behaviour/resistance.
The courts do not deny the right for land owners
and their agents to use a level of force to defend
property, however consider section 35 of C.C.
We must take into account ALL the factors
involved in each case including the overriding
questions; Should you be doing this at all? If so,
why? Is that a reasonable choice given all the
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Burgess And
other choices that
may
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Contract Guard Companies
and
Ensuring “due diligence.”
How do you ensure that a contractor is on
the same page as you?
How do you know that their training and
knowledge is in alignment with your
expectations?
Where does this leave you in civil
litigation?
Copyright M.D. Burgess And
Associates Inc 2014
“The Solution”
“The illiterate of the 21st century will not be those who can not read
and write, but those that refuse to unlearn and relearn.” Alvin Toffler
Wisdom comes from good judgement.
Good judgement comes from experience.
Experience comes from mistakes.
Mistakes come from bad judgment.
Copyright M.D. Burgess And
Associates Inc 2014