Mandatory Training Standards: Where are we now?
By Mike Burgess
Five years ago, I wrote, “There is an old saying that comes from the Huna tradition that says, ‘For everything in life you must pay attention. To the degree you do not pay attention, you pay with pain.’” Wise words to be sure, but still falling on deaf ears it seems.
Twenty-two recommendations of the Shand Coroner’s Inquest resulted in legislation changes and new training standards in some, but not all, Provinces in Canada.
By Mike Burgess
The response by Ministries that oversee Guards and Private Investigators has been disjointed, to say the least and there is still no common path forward. So where are we today, five years on? We now have mandatory 40-hour “basic training” courses in most of Canada, but there are still some Provinces where a person with a clean criminal record can simply apply for a licence, pay a fee and is instantly a guard. Arguably the core issue in the Patrick Shand case, use of force training, has gone mostly ignored with one or two exceptions.
This contentious part of security licensing is use of force, specialty skills training and testing. This issue remains unresolved in most of the country. For those who have attempted it, no two are on the same page.
Shand inquest recommendation: “Security practitioners whose duties may include making arrests or the lawful application of force should be re-certified annually with respect to Use of Force Training.”
“Mandatory training should be delivered by qualified trainers certified by the Ministry.”
Here’s where we are today with this:
Some Provinces prohibit guards from carrying handcuffs and/or batons, some don’t mention them at all except as equipment that may be issued upon obtaining permission. Some require refresher training in the use of handcuffs, but not the use of physical force, once every three years. Some require “certification” in an American-based system that was originally designed for police and corrections. Still others are not prepared to address the issue at all.
To quote one Ministry official, where the standards were contemplated then set aside, “the Provincial government feels it has no place in interfering with the internal operations of private security. If a company and its clients feels they should train and equip their guards in the uses of force for the protection of persons or property, the criminal and civil accountability for their actions in a given case ultimately rests with them and not the government. They have no more authority to act than any other citizen.”
As Provinces continue to contemplate what they should or should not do in regards to use of force training standards I am reminded of what the courts call “the two step test.” The Supreme Court stated in 2003 … “reasonable force” in the context of a given case may have to 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 true core issue, in my opinion, surrounding use of force and arrest by persons who are not police officers.
More than one Provincial government official has commented to me that “they want nothing to do with the issue of vetting use of force instructor’s credentials. Due diligence matters relative to Occupiers Liability are best left to the companies themselves to determine.” Despite this, a couple of Provinces now have requirements in place to be an approved instructor in the use of force. A scary thought if you fully understand the implications and potential backlash of this.
In my work as a subject matter expert, I often am called to give subjective opinions on standards and marked departures. Fault or responsibility, based on carelessness or lack of due diligence involving a marked departure from the “norm,” is ultimately based on an objective test by the court. That test involves assessing a person’s or company’s actions against the standard of the reasonable person and/or industry. Those standards are not set by any Provincial Ministry, they are dictated by a jury of our peers in a courtroom.
I was reminded by a judge during my testimony, that there is no such thing as “best practice” when it comes to the courts. The court accepts what is known as “successful practice” to refer to the “way things have always been done…and everyone is doing it this way.” The judge’s comments are etched in my mind now as I see their point: “Consensus between people within an industry does not necessarily make the untrue true.” Standards can be set, regulations written, however at the end of the day the acid test is the court for reasonableness.
Today licenced guards can still move directly into positions such as loss prevention, where they may make arrests on a daily basis. No training in the use of force is required. This may change with time but there does not seem to be the political will to do so.
Issues surrounding uniforms, dogs, identification, records keeping, oversight bodies, portability of licences, seems to have been addressed in those Provinces that have implemented changes to legislation. That’s the good news. The bad news is that the toughest issue is still yet to be fully addressed, in my opinion.
At a keynote speech a few years ago I was asked, “How do we raise the level of training standards nationally, especially amongst contracted security?” I answered by saying “respectfully…look in the mirror. You get what you ask for and what you insist upon. Don’t let the industry or government dictate standards that are ultimately unacceptable to you. Redefine what ‘trained’ means to you and is acceptable to the courts and write that into all your RFPs and contracts.”
Government standards are minimums only; you need to set your bar above that.
Mike Burgess is the president of M.D. Burgess And Associates Inc. and is a court-recognized subject matter expert in security training and the use of force.