posted March 1, 2004

Wal-Mart Security, Part II: a security expert writes a commentary.

A security industry insider, a 17-year veteran of the private security industry with an MSc in Security & Risk Management, read the newsletter story of the Wal-Mart Security guards coming to our park. I asked him what he thought of the events that happened on that day. I also told him that when we showed this story to the manager of Wal-Mart prior to putting it in our newsletter, the manager said he would send our account to Wal-Mart's legal department -- because they could sue us for libel.

Here is our expert's evaluation of our experience, and also of the warning we got from the Wal-Mart manager afterwards. He writes:

This incident extends into several areas of the law, as well as the business and security practices of the Company involved. I will break down these areas and deal with each in turn.

The authority to arrest

The Loss Prevention Officers you encountered are private citizens, and as such have three lines of authority from which they draw the power to arrest. The first is section 494 of the Criminal Code of Canada which authorizes private citizens to arrest those "found committing" a criminal offence on or in relation to the property. Off of the property, section 494 CC also allows private security guards (citizens) to arrest anyone they "find committing" an indictable [more serious] offence. The second class of arrest is for breach of peace under the common law, where a private citizen may arrest a person who is involved in, or is about to join, a current breach of the peace. The final arrest power flows from the Provincial Legislation in Ontario entitled "The Trespass to Property Act" (TPA). Here, an agent of a property owner (security guard) or "Occupier" can arrest someone who has been barred from the property and returns without lawful authority [Section 2 of the TPA].

Trespass To Premises Act

From my read of the article, it is the latter class of offence for which the Loss Prevention Officers were attempting to make an arrest in this case. This is where the fun starts......Under the TPA [Section 9(1)], an occupier of premises (security guard) may arrest without warrant any person he/she believes on reasonable and probable grounds to be on the premises in contravention of Section 2. From the admissions of the unfortunate fellow on the bench, it seems that he had been previously issued a verbal or written exclusion from the store/Mall and was therefore arrestable if found on the property in violation of this notice. Note my underlinings. Section 9(1) does not say "reasonable and probable grounds to have been on the property" (i.e. this is not "past" tense). Clearly, the suspect has to be found and arrested while still on the property for such arrest under the TPA to be lawful.

When we move off of the property, the TPA [Section 10] states that a police officer can arrest a person in contravention of Section 2 when the trespasser "has made fresh departure from the premises" and has refused to give a name or has given a false name. This section is silent with respect to the powers of an occupier to arrest once the trespasser has left the property concerned. As the legislation has a section on arrests off property - but does not specifically extend such power of arrest to occupiers, I conclude that occupiers and their agents can only arrest trespassers when they are actually on the property. It seems to me, therefore, that the Loss Prevention Officers in this case had no right to approach the trespasser in a public park to attempt an arrest for a TPA offence that had occurred some time earlier.

Assuming for a moment that the arrest did have lawful grounds.........The Loss Prevention Officers would not have any authority to "order about" members of the public on public property. If a member of the public interferes in a lawful arrest by, let's say, inserting themselves between the parties, then that member of the public could be arrested for obstruction of justice under the Criminal Code of Canada. Aside from this type of overt interference by a bystander - there is nothing in law that permits a security guard (or police officer for that matter) to arrest a member of the public who is asking questions to satisfy herself that the attempted arrest taking place before her is indeed being exercised with lawful authority. This is particularly the case when there is lingering ambiguity as to the identity of the arrestors [i.e. the "hurried" showing of the badge]. Security guards have absolutely no powers beyond the average citizen when operating on public property. The fact that the Loss Prevention Officers were purportedly "conducting an investigation" is of absolutely no matter. Any arrest they made of a bystander in this situation would be unlawful, and any force exerted to remove a bystander from the park would have been an unlawful assault, actionable by criminal charges.

Resisting Arrest

In order for the trespasser to have been arrested or charged for "resisting arrest" a lawful arrest must have been resisted! It appears from the earlier analysis that this arrest was not lawful. Either way, the trespasser cannot be charged with "resisting arrest" [there is no such offence in the Criminal Code], but rather a charge of "escaping lawful custody" could be brought if the trespasser, having been arrested, had escaped custody [not the case here, or so it seems]. In addition, a charge of assault could be levied against the trespasser if he resisted the efforts to arrest him in a direct way. In the present case, even in the unlikely event the arrest was lawful, the resistance by the trespasser seemed to have been passive resistance [in other words, he was being uncooperative as opposed to overtly aggressive in his resistance]. Court cases on assault charges in these situations are usually dismissed. It appears that when the police arrived they recognized that an offence of "resisting arrest" [or a related offence] had not been made out. They decided to solely issue a violation under the TPA. If indeed the first time the Loss Prevention staff encountered the trespasser following the original trespassing offence was in the park, this seems to be a case of false arrest. In this case, the trespasser would be entitled to resist such an arrest with force.

Business & Security Practices

I have a few comments in relation to the actions taken by the security personnel involved in this episode. Firstly, I must say, it is going against common sense and normal industry practice (and it seems, the law) for security personnel to go off property searching for a suspect involved in a very minor offence which was perpetrated some time in the recent past. The decision to pursue an arrest in these circumstances [unless there are details of which I am unaware] is both cavalier and high-handed. The pursuit and arrest were unnecessary. What kind of imminent threat did the man on the bench pose to the Company? This seems to be a case of "teaching someone a lesson" under the guise of an arrest made by persons who ought to have known better!

The Manager was incorrect in stating that Loss Prevention staff are "licensed by the police". This is not the case in any jurisdiction in Canada. If the Loss Prevention Officers work for a security company contracted by the Manager's Company, they will be licensed under the Private Investigators and Security Guards Act (PISGA) of Ontario. The PISGA does not expand any of the powers or authority of security personnel. On the other hand, if the Loss Prevention Officers work directly for the Company, they do not have to be licensed at all. I find it surprising the Manager was unfamiliar with the powers of his employees, and further, was unresponsive to a legitimate concern raised by a member of the community. I believe the Manager owes the community an apology for the inaappropriate actions of his employees, and for his mishandling of the aftermath of this incident.

Further, I was aghast to hear this Manager had the audacity to threaten a legal suit against the publication of your newsletter story. There are so many reasons, both legal and moral, why this threat holds no weight whatsoever. You are ever so entitled to print the facts as you saw them and you should have no fear of reprisal. This threat smacks of an attempt to bully a muzzle on to a legitimate story that the community ought to be made aware of.

Conclusion

All in all I was shocked to read about the events you and your colleagues witnessed. I applaud you for having the courage to stand up for your convictions and challenge what appears, on the facts presented, to be an unlawful arrest by persons in authority. I find this action all the more reprehensible in the case of security personnel who are trained in their powers and limitations with respect to arrests. This incident brings to mind a quote, with which I wholeheartedly agree, from a Judge from the Ontario Court of Justice:

R v JC [1995] OJ No. 1637 at para. 23 (Ont Ct of Just - Prov Div) – "Security guards should be expected, by the nature of their work, to be more aware of the limitations on their powers than ordinary citizens. When they exceed their authority a remedy should be available which acts as a strong reminder to them and other persons employed in such positions that their powers are circumscribed by the law".

Recourse

Despite the facts of this unfortunate case, it appears the fellow on the bench was given a ticket under the TPA which he must pay. It appears he was on the store's property in violation of the TPA. However, in my opinion, based on the facts presented, a false arrest and imprisonment took place and a civil suit could be so brought against the Loss Prevention employees and their employer by the gentleman on the bench. In reality though, this will probably not happen.

You could call the provincial agency (Solicitor General's Dept) that administers the Private Investigators and Security Guards Act (PISGA). If indeed the Loss Prevention staff are hired through a contract company, you and your colleagues could lodge a written complaint about this incident. This incident would be investigated by Police Officers attached to the PISGA section. Ideally, you could bring a "public interest" complaint against these security personnel, but as far as I'm aware, this type of mechanism is only applicable in certain provinces (BC is one - not sure on Ontario) in connection with complaints against the police.

Please let me know how the follow up to this incident plays out, and if I can offer further assistance. Situations such as this really irk me!!!!! I'm proud of the industry I represent (most of the time)....................