Section 8 – Legal Authorities

Section OverviewThe section focuses on the broader legal context of private security including the rights and limitations when performing duties as a security guard. This includes understanding where a security guard derives his/her authority to carry out job functions. An understanding of legislation in addition to the PSISA that impacts on the job of a security guard is recommended.

Handling Information and the Personal Information Protection and Electronic Documents Act (PIPEDA)

PIPEDA is a law designed to protect personal information. If while performing duties as a security guard you are handling personal information, you should not use or disclose it. There may be other privacy legislation that relates to the handling of information by a security guard, such as the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

Additional LegislationTrespass to Property ActThis Ontario law allows occupiers of private premises to determine who is or isn’t allowed on these premises. An occupier may also designate individuals who are authorized to act on the occupier’s behalf when it comes to allowing individuals on their premises. By nature, security guards often fill this role, as it is usually their responsibility to control access to a specific location.

According to subsection 2(1) of the Act, a person may be found guilty of a trespass offence if:They enter a location where entry is prohibitedThey engage in an activity that is forbidden on the premisesThey refuse to leave when asked to do so by the occupier or an authorized person (e.g. a security guard).

If entry is prohibited or restricted, notice must be given to the individual, either verbally, in writing, or with the aid of signs or markings.

Persons in violation of section 2 of the Act may be arrested without a warrant. A security guard who arrests a person under the authority of the Trespass to Property Act must contact the police as soon as possible and deliver the individual to a police officer.

Security guards may also want to familiarize themselves with the following legislation:Employment Standards Act, 2000Labour Relations Act, 1995Liquor Licence ActProvincial Offences ActResidential Tenancies Act, 2006

Criminal Code of Canada

Security guards may encounter situations in which they need to deal with indictable or summary offences. They need to be able to accurately identify and categorize offences when on duty and understand when they are able to conduct a citizen’s arrest according to the Criminal Code of Canada.

Powers of Arrest

Security guards have neither police nor peace officer powers. They have the same powers as any member of the public under the Criminal Code. Specifically, section 494 of the Criminal Code describes when it is appropriate for a member of the public to make an arrest.If a security guard is guarding property and is authorized by the owner of the property or the person in lawful possession of the property, they may make an arrest for ANY criminal offence that is committed on or in relation to the property, as long as the security guard witnessed the offence being committed.If the offence is an indictable offence, they may make the arrest, even if the offence is not committed on or in relation to the property they are guarding, so long as the security guard has witnessed the offence. Security guards should therefore understand the distinction between an indictable offence and a summary offence. Typically, indictable offences are more serious; a lot of the offences that security guards normally encounter are indictable, e.g. theft. Once an arrest has been performed, the security guard must deliver the individual to a peace officer as soon as possible.

Section 494 of The Criminal Code of Canada provides the general authority for a citizen’s arrest, available to security guards or anyone not appointed as a peace officer.

Powers of Arrest Continued

Do I have the power to arrest someone?In Canada, anyone has the right to arrest someone under certain conditions. This is often called a “citizen’s arrest.” This is a serious decision however, and should only be used as a last resort.

What exactly does “arrest” mean?The meaning of arrest is open to interpretation and lawyers and judges often debate it in court. Basically, arrest happens when someone uses their authority to take away another person’s freedom. The Canadian Charter of Rights and Freedoms protects our fundamental right of freedom. It is very important for you to know when you are justified in arresting someone.

When am I justified in making an arrest?There are three situations in which you may arrest someone. The first situation applies anywhere. The second situation applies only to your own property or property that the owner has asked you to protect. The third situation applies when you are helping someone else who has the lawful authority to arrest the person that they are chasing.

The three situations are as follows:If you find someone committing an indictable offence, you may arrest them. This could be happening anywhere, but you must be able to provide evidence in court that you found the person committing the entire offence. You can’t just see the end result or the beginning. Also, you have to arrest the person right away. If the person runs away and you run after them, you can only arrest them if you have “continuous fresh pursuit.” This means that you continue to chase them and catch them. You do not have “continuous fresh pursuit” if the person escapes. If you see the same person three hours later in a mall you cannot arrest them. However, you can explain the situation to the police who may be able to do something.Because you are authorized by the owner to protect their property, you have the same rights of arrest as the owner. You may arrest anyone who you find committing a criminal offence on or in relation to that property. This includes persons involved, not only in indictable offences, but also in dual and summary conviction offences. You must catch someone in their act of committing a crime against the property you are protecting. Here are two examples:You see a person (found committing ) break a window (criminal offence/mischief) on your site (on or in relation to the property). You have the authority to arrest that person.You hear a window break, you come around the corner and see a person standing next to a broken window on your site. In this case, you do not see it happen; on of the conditions is missing, so you do not have the authority to arrest that person.If you have reasonable grounds to believe someone has committed a criminal offence, is escaping from, and is being chased by someone with the legal authority to arrest that person, you may assist in the arrestYou are making your rounds in the parking lot and you hear someone yell, “Stop Police! You are under arrest!” A man comes running toward you with a police officer in pursuit. Based on what you have heard and seen, you can assist the officer with the arrest.

Making an Arrest

What procedures must I follow if I make an arrest?If you make an arrest, treat the person with respect, and try to minimize any embarrassment to the person. If you are going to arrest someone, you must do so when you find them committing the crime, not later.You must follow all of the laws about arrest very carefully. If you are not justified in arresting someone, you may be charged with making a false arrest.

Steps for Making an ArrestIdentify yourself. If you are asked for proof you must show your security license. You may also want to show it if you think the arrested person is unsure of your actions or authority. If you are in uniform, you will not usually be asked for identification.Tell them that you are arresting them and why you are arresting them. Be specific about this. For example “You are being arrested for breaking the front window on this building.”The person must understand why they are being arrested. If they don’t understand, explain it in other words. Record exactly what you say to them.Ask the person to go with you. If they resist, take them firmly but gently by the back of the upper arm and indicate by words and physical gesture that the person is to accompany you. If you are concerned about your safety then it is best not to touch the person.Tell the person that they can call a lawyer. Say “It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. Free legal aid is available if you want it. Do you understand.” If the person does not understand explain in other terms. You could say, “You have the right to call a lawyer, friend or family member now.” Record exactly what you say to them. You must give them a phone book or the legal aid phone number if they need it Be sure that they have privacy to make their call.If the person is a young offender, they must contact a parent , relative, guardian or another adult. If they don’t do this, then you must contact someone on their behalf.Warn the person. “You are not obliged to say anything, unless you wish to do so. But whatever you say may be given in evidence. Do you Understand?” If necessary, explain that they don’t have to say anything. But if they do, you will record exactly what they say and their words may be used in court. Turn the person over to the police as soon as possible.

Keep a detailed record of the whole arrest:Show date, place, who was present, start time and finish time of interviewBe sure to record anything the person says about the crime. Use the person’s exact words.

Search and Seizure

The Charter of Rights and Freedoms says that everyone has the right not toBe unreasonably searched, or Have things that are in their possession taken away from them

When can I search someone?

As a security guard you can search someone if they give their consent. This means that they say it its okay for you to do this. If the person changes their mind part way through a search and tells you that they don’t want to be searched, you must stop the search immediately. However, if you have lawfully arrested someone, and if you believe they have a weapon, you can search them without their consent. You can only search for something that the person might use to cause harm to themselves or someone else. You cannot search for evidence.

You may need to search someone:

When they are entering a guarded area. For example, you may have to search people going into a secured mine site. If they will not let you search them, you have the right to refuse to let them in.When they are leaving a secured area. For example, company policy may require that you search employees to make sure that they are not taking company items home with them. If someone refuses a search, you can’t search them. But you should record as much information as you can about the person. You can then inform management and let them deal with the situation. After you have arrested someone. In these situations, only search someone if you must; for example, if you think they are carrying a weapon. Let the police take care of a search if at all possible. If you have legally arrested the person, you may search them for Any weapon that they may have that they could use to injure themselves or others.Anything that they might use to escape custody. If you think that the person is carrying a weapon you have the right to pat them down and remove it yourself. Asking them to remove the weapon could give them the opportunity to get the weapon into their hands and use it against you.

Caution:It is not a good idea to put your hands into someone’s pockets or bag. You could be accused of stealing or planting something. Also, if you touch a sharp object, you could injure yourself or become infected with a disease. Use proper safety equipment to perform a search.

When can I seize something from someone?

You can seize illegal items that you find during a search. These may include stolen goods, weapons or drugs. You must turn seized items over to the police right away. Be careful how you handle them as they may be used as evidence.

Remember: If you overstep your legal authority you may be charged or sued and could end up having a criminal record.

Tort Law

Every person is expected to conduct themselves without injuring others. When they do so, either intentionally or by negligence, they can be required by a court to pay money to the injured party (damages) so that, ultimately, they will suffer the pain cause by their action.Tort also serves as a deterrent by sending a message to the community as to what is unacceptable conduct.Tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury, the person causing the injury and committing the tort referred to in law as a tort-feasor.Tort also serves as a deterrent by holding persons responsible for their actions and to educate the community as to what is unacceptable conduct. Another moral lesson of tort law - that wrongdoers pay for their actions - is a pinnacle of modern society and, indeed, of many religious beliefs.

Two major distinctions have to be added to the above attempt at defining tort law:

Tort law is the wrong place to turn for compensation for an ill-performed duty owed to you as a result of a private agreement between you and another. This latter situation would be governed under the law of contract, and not tort law, and a whole different set of rules.

Tort law is not the same as criminal law. A crime often leads to two very different branches of the law, one being tort law, the other being criminal law. Say I punched you in the nose. This would be a crime and punishable in court. The state would prosecute me on behalf of society and not on behalf of the victim. Any fine handed out against me as a sentence would not go to the victim but would go to the government. That same punch would also give rise to an action under tort law, where you would sue me for causing you injury and your suit would ask the court to order me to compensate you, asking for an amount which, as best as can be done, the pain and inconvenience a broken nose is worth. Any compensation the court would order me to pay would go to you.

Tort Law Continued

But crime and tort entail very different legal processes. Criminal proceedings require proof beyond reasonable doubt whereas the tort action only requires proof based on a preponderance of evidence. A criminal conviction is by no means an automatic entitlement to compensation under tort law (although some states have criminal victims compensation laws which somewhat dilute this principle). In fact, there is an odd reluctance on the parts of judges to accept a criminal court's finding that there has been a wrongful act, an injury and a direct link between the wrongful act and the injury while considering a tort lawsuit based on the same incident. This is unfortunate and many legal experts are calling on courts to drop their resistance in this regard.In the finest tradition of English common law (where tort law comes from), it was originally pure judge-made law. But more and more states are writing laws which limit, clarify or strengthen tort law.For example, one Canadian province has said that every time a motor vehicle hits a pedestrian, the motor vehicle driver is presumed at fault and liable for damages.Some states even have legislation which protects Good Samaritans such as American law which says that doctors cannot be held liable under tort for assistance provided at the scene of an accident except for "gross negligence" (Good Samaritans are the traditional orphans of tort law because tort law does virtually nothing to protect them from liability if, while trying to help, they injure their intended beneficiary).But even for those areas where the principles of tort law are not codified in statutes but only in precedents, states have adapted, through judicial decisions, parts of tort law to suit their constituency.

Landlords and Tenants

The rules about the relationship between landlords and tenants are found in the Landlord and Tenant Act (in commercial cases) and the Residential Tenancies Act (in residential cases). Both landlords and tenants have rights, as well as responsibilities.

Common QuestionsWhat does this have to do with security guards?One of the main duties of the security guard is to protect property. When you are guarding property, you are given the same rights as the owner or landlord under the Landlord and Tenant Act and the Residential Tenancies Act.

What are some of my rights?Remember, the Criminal Code of Canada allows you to arrest anyone you witness committing a criminal offence on or in relation to that property.

The Landlord/Owner sets out reasonable rules and regulations in a contract with the tenant. Because you are representing the landlord, you have the right to make sure the rules and regulations are obeyed.

Questions Continued

What are my responsibilities?You may receive complaints about people causing a disturbance or behaving in a dangerous manner. As soon as possible, you must investigate these complaints and try to take care of the problem. This may involve simply asking someone to be more quiet, or in more serious situations, calling the police to assist you.

You must ensure that locked areas remain locked and write an incident report if you find any damaged property or notice anything missing.

Actually, most security guards work for a security services company and are directly responsible to the company. The company will send you to work for a client of their choosing – usually a landlord/owner. However, there are times when the client is a tenant who leases the property ( as in a shopping mall). In these cases, the tenant is still responsible for the property and since you are acting on their behalf you have the same rights and responsibilities.

Questions Continued

What if the client asks me to do something that I think is illegal?Your company receives instructions from the client, usually in the form of a contract, which clearly state what your responsibilities are.

If the client asks you to perform services that are not outlined in your post orders, such as inspecting an apartment for damages, you should check with you supervisor about how to handle the request. Tenants have a right to privacy and landlords must give them at least 24hrs notice before they can go into an apartment. You do not want to get caught in the middle of a landlord/tenant dispute. It’s important to keep careful notes of any special requests or duties. You must do this to protect yourself, you employer and the client.

Questions ContinuedWhat is trespassing?

Definitions1. (1) In this Act,“occupier” includes,(a) a person who is in physical possession of premises, or(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes,(a) water,(b) ships and vessels,(c) trailers and portable structures designed or used for residence, business or shelter,(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).

School boards(2) A school board has all the rights and duties of an occupier in respect of its school sites as defined in the Education Act. R.S.O. 1990, c. T.21, s. 1 (2).Trespass an offence

2. (1) Every person who is not acting under a right or authority conferred by law and who,(a) without the express permission of the occupier, the proof of which rests on the defendant,(i) enters on premises when entry is prohibited under this Act, or(ii) engages in an activity on premises when the activity is prohibited under this Act; or(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).

Questions Continued

What is vandalism?Vandalism is committed when one or more individuals, during the exercise of their profession, willfully damage or destroy the property that has been made available to them for the purpose of their work (rooms, facilities, vehicles or equipments). These actions may be aimed at the employer or at a specific individual.

Vandalism

What are the consequences of vandalism at work?FOR THE VICTIM Vandalism is an act of hostility directed at a victim. The aggressor is indirectly assaulting the victim by destroying his or her work tools while, at the same time, contaminating life at work, inflicting stress and possibly provoking confrontation.FOR WITNESSES INSIDE THE ORGANIZATIONVandalism can deteriorate the work environment and threaten security in the workplace. Witnesses of vandalism often do not dare step in for fear of endangering their own safety or personal belongings.FOR THE ORGANIZATION Vandalism creates tension at work. Employers may have to negotiate and, in more extreme cases, resort to force to restore order and resolve conflicts. This, in turn, may result in material and financial losses, loss of time and productivity and tighter security, and also affect insurability as well as the organization’s image and culture.

Legal Consequences of vandalismWhat are the legal consequences of vandalism?Any act of vandalism merits a criminal sanction because it unjustifiably deprives someone of personal goods or causes damage. Vandalism is a criminal act that falls under "mischief" according to section 430 of the Criminal Code of Canada and is described as follows:

430. (1) Every one commits mischief who wilfullydestroys or damages property;renders property dangerous, useless, inoperative or ineffective;obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; orobstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

Mischief in relation to data(1.1) Every one commits mischief who wilfullydestroys or alters data;renders data meaningless, useless or ineffective;obstructs, interrupts or interferes with the lawful use of data; orobstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.

Punishment(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence andliable to imprisonment for life.(…)(4) Every one who commits mischief in relation to property, other than property described in subsection (3) –testamentary instrument,is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or(b) is guilty of an offence punishable on summary conviction.(…)(5) Every one who commits mischief in relation to data,is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; oris guilty of an offence punishable on summary conviction.

A conviction under the law or the Criminal Code can affect a person’s right to practice a trade or profession.

TheftWhat is theft?Theft means to take someone else’s property, either surreptitiously or by force. In business, theft is to take or retain more than what is due (salary, fines or deductions) or taking excessive benefits (swindling).

The following are a few synonyms:

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appropriationarmed robberyattackbanditrybreaking & enteringembezzlementfraud

hold-up larcenylootingmisappropriationpilferingrobberyswindlethieving

What are the consequences of theft at work?

For the victimThe consequences of theft by someone inside the company vary depending on the extent of the theft itself, the value of the stolen goods, the motives, and the method used. Having one’s wallet stolen because of carelessness can be less dramatic than being the victim of repeated petty theft by a mystery person. In the first case, the victim learns to be more careful after losing a bit of money and a great deal of time to replace bank or credit cards. In the second case the victim experiences an annoying problem that could turn out to be psychological harassment causing serious stress and post-traumatic syndrome with its associated physiological (hypertension, ulcers, eczema, pains) and psychological (nervousness, insomnia, exhaustion) effects. Theft also causes economic distress for the victim, who loses money or may have to pay to replace property. Moreover, if mental health problems develop, the victim may have to stop working and suffer a loss in earnings.

Consequences of Theft Continued

For Witnesses inside the organizationWorkers who witness theft inside their organization may lose trust in their colleagues and in their workplace. They may feel insecure and threatened. They are likely to watch everything that is going on at work instead of concentrating on their tasks. The quality of their work and their productivity may suffer.

Consequences of Theft Continued

For the organizationDepending upon the extent, frequency and nature of the theft, an organization may find itself in a difficult position that could compromise two key elements having to do with its operations and reputation: its security system, and trust in the honesty of its staff. Therefore theft affects material and human resources. Moreover, sometimes an associate, a manager, an administrator or a simple employee is the thief, which adds to the complexity of the situation.

What are the legal consequences of theft?

Section 334 of the Criminal Code of Canada describes the punishment for theft as follows:Except where otherwise provided by law, every one who commits theft:is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; oris guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years, orof an offence punishable on summary conviction, where the value of what is stolen does not exceed five thousand dollars.

A conviction under the law or the Criminal Code can affect a person’s right to practice a trade or profession.