Justice Committee on Feb. 9th, 2012

[Ross McLeod]

No, the changes are extremely subtle. I've tried to deal with them from our perspective, because we see that technology is becoming a big thing—now and in the future.

[Françoise Boivin, NDP, Gatineau, QC]

We're talking about a reasonable period of time. So you might have to appear before the court if necessary. You would have to investigate, verify and do certain things.

How would you interpret the reasonable period of time mentioned in the provision that replaces subsection 494(2)?

[Ross McLeod]

I don't think it will experience a really broad interpretation. Right now everything has to be fairly immediate. There has to be fresh pursuit.

[Françoise Boivin, NDP, Gatineau, QC]

So it wouldn't be a question of days or...?

[Ross McLeod]

No, I don't see that happening.

There is a second aspect to your question about the relationship with the police. You suggested that perhaps I was lobbying for enhanced powers. I certainly was. The police, in turn, are lobbying to leave it to the professionals. The police can't even attend in a timely manner to deal with arrests that are currently made by loss prevention people in retail environments. They certainly can't—and don't want to—get more involved in those environments. They simply cannot do it. They don't have the time, they don't have the personnel, and they're not there to see all these things happening.

[The Chair, Conservative, Dave MacKenzie]

Madame Boivin, we're at our limit. Thank you.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

First of all, thank you to the witnesses for appearing—those we see and those we don't.

My question is directed to Mr. McLeod. Of course, the reforms proposed in Bill C-26 allow property owners, and persons authorized by them such as security guards, to arrest persons they find committing a criminal offence, whether the offence is seen via technology or as an eyewitness. It authorizes them to make the arrest at that time, or within a reasonable period of time—you've spoken about that—after they have found the person committing the offence. Of course, the property owner or the security guard in question has to have reasonable grounds, under the circumstances, for not calling a police officer to come to the site. You've talked about how the overwhelming amount of incidents would dictate that perhaps a police officer can't be there.

With that in mind, how important is it to allow people authorized by property owners, such as security guards, to conduct citizens' arrests? You've talked about saving money with this and about the fact that the police cannot attend because of the overwhelming number of incidents. Can you give us some examples to illustrate that?

[Ross McLeod]

It's very, very important. It's one of these things that has been growing and going on under the public radar. If you suddenly brought an end to it, it would lead to real chaos in shopping centres, in retail environments, in semi-public/semi-private spaces, and in housing projects.

If you talk to the director of security for a regional shopping centre, he can show you literally thousands—or in the case of something the size of the Eaton Centre, tens of thousands—of banning orders that have been issued against a whole range of folks for a whole range of anti-social and criminal behaviour. Most of the orders are time-stamped now, so someone gets to come back after a period of months or, depending on the offence, maybe a year, and to have a fresh start once the banning order is cancelled.

This unglamorous work of low-level law enforcement that's done by security is the sort that police don't want to do. They're required to say, “Leave it to the professionals”, but at that level of professionalism and that level of compensation, there's no way that they can do it, or that they even want to do it. There has to be a lower echelon that takes care of that, and that's what private security does.

We simply ask that what we're doing now, which will accelerate into the future, not be abridged or mitigated in any way, because it's very important to civil society.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I agree that banning orders would certainly be on the lower end of the spectrum, but there are other instances where I thought perhaps reasonable force or detention would have to be used.

Some concern has been expressed about what kind of training your association provides to the individuals you employ.

[Ross McLeod]

Our association doesn't provide any direct training as an association, but there are new and enhanced provincial regulations on training. It's an ongoing thing. Our association meets with the registrar, and the registrars all across Canada have formed their own association. We're now working as a group on harmonizing the training and testing regulations across Canada, with a view to the portability of security licences across the country. This is a process that's started and will carry on for the foreseeable future.

We have basic training regulations, and the next step will be adding more regulations and testing for people who are actually using force. This is all very doable, and we're in the process of doing it.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Am I to understand that you have a form of continuing education for security guards in regard to topics that would bring their services into play?

[Ross McLeod]

It's available from many sources in the community, but what's continuing is the work among the provincial registrars of the private security industry, working with agencies like ours who represent the industry, to promulgate training and testing standards and to bring in higher levels for people who are doing higher levels of enforcement work.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I wanted to ask about one further thing. You talked about cost savings. Have any studies been done with regard to savings from the use of security guards versus police enforcement?

[Ross McLeod]

No. Those also are under way now, but I think most rank and file officers will tell you that they spend a huge amount of downtime just dealing with this.

In fact, just the pressure of this has led to various ad hoc arrangements. For instance, Peel Regional Police have an arrangement in their jurisdiction where, if an arrest is effected at a shopping centre, for shop theft or something else, you call in and speak to the desk sergeant and you tell him about all of the ID you have on the person, the offence, etc. They make a judgment over the phone; they give you a release number and they allow you to release at the scene, and then they mail out an offence ticket.

There are certain criteria to be met. Obviously this isn't a serious criminal who has a long criminal record; they're checking that back at the station. If those criteria are met, you're allowed to release. This is happening in Peel, and I've been told that it's happening in other jurisdictions as well. It's just an ad hoc measure that the police have worked out to try to cope with the pressure.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Cotler.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I'll ask this question, to be answered by any of the witnesses today.

When a private citizen chooses to effect an arrest without a warrant, then he or she can run the risk that the person who is thereby arrested may in fact be innocent; that the arrest may be determined to be a wrongful arrest; and in this case, that the person can be sued for damages for false imprisonment. If the person is sued for damages by reason of false imprisonment, he or she can raise the defence of having believed, on reasonable grounds, that the accused committed a criminal offence. In such a proceeding, it is the citizen who has the burden of proof to demonstrate that his or her belief was reasonable.

My question is, what effect would this bill have on the whole question of false imprisonment, if any?

[Ross McLeod]

I don't see really any new effect. There's a whole area of law here. There are lawyers who specialize in this.

I'm the head of our association, but I also own an agency that historically, over the last 30 years, has been a vanguard agency in doing proactive security work. We've arrested over 65,000 people over the last 30 years. I know what's involved in the logistics of doing that. I know what the insurance premiums associated with doing that are, because sometimes you get sued. It's just a reality of life—it happens. Shopping centres get “slip and falls”; we get interpleaded with those things. They sue everybody—the cleaners, the security.

In my opinion, and in the opinion of our lawyers who do these cases, Bill C-26 won't have any major effect.

There are a lot of lawyers who are eager to take these cases against the security agencies. I don't think it's going to make it easier for them to do it, and I don't think it's going to make it more difficult; it's pretty much the same.

[The Chair, Conservative, Dave MacKenzie]

Ms. Pate, do you have any comments? No?

Mr. Gottardi, do you have any comments?

[Eric Gottardi]

Yes.

Mr. Cotler, your question has different applications.

When you're talking about individuals involved in the private policing or the private security field and those individuals who make arrests routinely, it may not represent much of a change in terms of potential civil liability or even potentially criminal liability.

But then there's also the aspect of grocers like David Chen, and the average Canadian. The CBA's concern here is that there's a perception that this amendment to the law is going to provide much broader and more robust protections to people like Mr. Chen and to average Canadians who choose to intervene in what they believe to be a crime that they are witnessing. But the reality is that if they're effecting an arrest, they are, in effect, assaulting someone. In an after-the-fact scenario, they're going to have to rely on this defence or this justification for the arrest itself.

From our perspective, it's really problematic to even create the impression for anyone out there that they now have a broader right to arrest people who they think may be committing a criminal offence or taking part in criminal behaviour, because that will encourage people to intervene, and that may in fact result in them putting their own safety at risk or opening themselves up to civil liability.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

Mr. Stamatakis, did you have any comments?

[Tom Stamatakis]

Yes. I'm going to concur with the comments that my colleague from the bar association made. I touched on this in my comments. I think it's all in how the bill is introduced and how people perceive it, because I think it's fair to say that if the message is.... If somehow this encourages citizens or even private security personnel to more frequently arrest individuals who they come into contact with or believe have committed some kind of criminal offence in their proximity, then I think it's only reasonable to assume that there would be more litigation.

[The Chair, Conservative, Dave MacKenzie]

We've passed your time, Mr. Cotler, sorry.

Ms. Findlay.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Thank you, Chair. Thank you to the witnesses who are here today to assist us. My question is for Mr. McLeod.

As I understand it, a security guard is usually privately and formally employed and is paid to protect property assets and/or people. I realize there are many variations of that job description. Security guards maintain a highly visible presence, and I assume that is done to deter illegal and/or inappropriate actions, by observing either directly or through patrols, for instance. You were talking about electronic surveillance and the modern technologies we have today to assist us when looking for signs of crime, fire, disorder, and that sort of thing.

Bill C-26 would allow security guards, as designated persons, to take appropriate action to prevent crimes from happening as long as they act reasonably.

I have a couple of questions. Should private security guards, in your view, be able to act, or should they just be reporting incidents back to their clients, employers, or emergency services, as appropriate? In other words, when security personnel are doing their jobs in the real world, what do you see as an appropriate limit between just reporting and actually acting?

[Ross McLeod]

I would put it to you that the genie came out of the bottle back in the 1970s. Up until that time, the industry was an “observe and report” industry, and large segments of it still are. However, observing and reporting just didn't cut it anymore. The police response was too slow. In many cases, when the police arrived, the situation was gone, the damage was done, and the aggrieved parties were frustrated. There was a great demand from the public for remediation, for some level of intervention and remediation in low-level crimes.

That's what the public is concerned about. It's interesting watching television about serial killers, because what we are all concerned about in our communities is being accosted by toughs on the street, drunk and disorderlies, and this sort of thing. Parking problems and parties are the big things.

So around about 1970 was when the massive hiring of private security and the large enclosure of public spaces into semi-private spaces—the closed shopping mall—started to take place. It was a moment of truth for public policing. They could have gone in and taken their writ inside these places—these transit organizations and the huge malls. They chose not to, so private security just grew up to take care of that. You cannot go back. You could never go back.

For most Canadians, their first experience of enforcement and authority is from a private, uniform-wearing guard. The great focus for private security is deterrence. The uniform being there cuts it 90% of the time. Hands-on intervention is required in very few cases, but when it is required, when there's a crime in progress, there is no time to just observe and report. There has to be an intervention, and that's why the industry is where it is now.

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

Am I correct in presuming that security personnel are trained to call law enforcement, at the first opportunity, to come and support whatever they're doing?