Archive for September, 2012

By Jacqueline Tarantino

Kwantlen Polytechnic University

Contact: jacqueline.tarantino [at] kwantlen.net

Introduction

While the presence of the private security industry is not new, there has been rapid growth of the sector in recent years[1]. This expansion has a number of possible societal and political ramifications in the understanding of policing. The ratio of private to public agents may vary country to country[2], but the overall upsurge in private security personnel is apparent on an international scale (Buuren & Boer, 2009, Sect.2, para.1). Private security encompasses a multitude of industries[3] related to investigation, crime prevention, and order maintenance (Buuren & Boer, 2009, Sect.5, para.4). The increased involvement of the private sector in these areas, coupled with an increase in the number of personnel, has successfully blurred the lines of the private and public sectors.

There is a tendency to conceptualise public and private security as two distinct, and largely divorced, entities (Buuren, 2010). However, with the private security sector continuing to expand, a transgression into areas traditionally considered to be the domain of public policing.  A “hybridisation” (Buuren, 2010) of policing is emerging, rendering the dichotomous understanding of policing outdated and irrelevant leading to a growing need for policing to be re-defined.

Continuing to adhere to this dichotomous perspective does not allow for an effective definition of private security to be established, perpetuating a lack of clarity with regards to powers of private security agents and how to implement needed regulatory measures. Traditional activities which were once solely linked to public policing can no longer be used to differentiate between public and private sectors as considerable overlap and coordination of practices now exist (Buuren & Boer, 2009 Sect. 4, para.1). This has created mass confusion surrounding the jurisdiction of private security; legislation which governs the private sector; and the powers which may be exercised by private security agents.

Recent years have seen an increase in development of urban areas, and in turn, an establishment and expansion of ‘mass private property[4]’. These “hybrid places” (Buuren & Boer, 2009, Sect.3.8, para.1) allow for the misconception that they are public areas due to their widely accessible nature; however, these spaces are privately owned, and to large extent, privately governed (Buuren & Boer, 2009, Sect. 3.8, para.1). With the general public (and private security agents themselves) uncertain as to the scope of powers afforded to the private security industry, an overstepping of legal authority can, and does, occur (Security Before Justice, Executive Summary section para.6).

With the considerable expansion of the private security industry, and the overlap into traditionally public areas of policing, it is imperative that accountability measures presently in place in the private sector be reviewed, as well as consideration given as to how accountability may be improved. Within the public policing arena a number of oversight committees and regulatory practices currently exist. Some suggestion has been put forth that the private security industry be subjected to similar oversight models (Buuren & Boer, 2009, Sect. 5.2, para.1); however, these accountability mechanisms are a continued source of contention regarding effectiveness in evaluating the performance of policing organisations and dealing with instances of misconduct (In Search of Security, Sect. 1.3 para.4). Consideration must be given to how to implement an effective accountability mechanism which may adequately address the evolving face of policing activities.

A Call to Re-Shape the Understanding of Policing

While it is generally believed that the public police sector remains the primary police service provider, it is no longer the case that they have a monopoly on the industry (In Search of Security, Sect 1.2 para.1). The private industry has greatly expanded in recent years, reaching into all aspects of the security industry typically associated with public policing – including areas of high policing (In Search of Security, Sect. 1.2 para.1). Policing has become “multilateralised” (In Search of Security, Sect. 1.3 para.3) with private security being employed by private organisations as well as contracted by government, and public police agents acting under state directives while also being made available for private hire (pay-duty[5] police). In addition, collaborative efforts between public and private agencies are also being seen. Joint public-private investigations have occurred in industrial market settings as was seen with the mass scale FBI-IBM corporate espionage sting operation in the early 1980s (Marx, 1987). Private security agencies and public police organisations have also worked in tandem during large scale events which promote mass public visitation, such as with the Vancouver Olympic Games in 2010. The inability to categorise or differentiate private and public policing activities through traditionally accepted definitions calls for a reworking of how policing is characterised.

Private security personnel are the traditionally accepted understanding of what the private security industry encompasses. Private organisations provide security services to clients for a fee; however, some corporations employ their own in-house personnel for general security while contracting external firms to perform specialised tasks such as risk assessment or forensic accounting (Brodeur, 2010). The private security industry has seen substantial growth in technology systems development, yet there continues to be a lack of research focused on this segment of the private sector, as well as operations in high policing (Brodeur, 2010).

Private security, however, extends beyond employment by private organisations. The private security industry is seeing an increase in contract employment by government agencies, and through publicly funded subsidisation. In Vancouver, British Columbia, Business Improvement Associations, such as the Downtown Vancouver Business Improvement Association (DVBIA), are contracting private security personnel to patrol business districts to create a sense of safety and deter disorderly/ disruptive behaviour (Security Before Justice, Executive Summary section para.1; In Search of Security, Sect 3.2, para.5). The security personnel employed by the DVBIA are patrolling largely public property and are funded by taxes levied, and collected by, the City of Vancouver (Security Before Justice, Part 2 para.23). The Vancouver Police Union launched a suit to halt the City of Vancouver from funding the program as the services being provided by the private sector are normally provided by the Vancouver Police Department (Security Before Justice, Part 7, para.2). Private security services are being funded by the public to police public spaces – those traditionally thought to be the exclusive domain of public police organisations.

Public policing is also adopting practices traditionally associated with the private security industry. The Royal Canadian Mounted Police (RCMP) as well as the Ontario Provincial Police (OPP) contract with provinces and municipalities to provide policing services[6] (In Search of Security Sect. 3.4.2 para.2). An industrial market approach is being assumed by public policing agencies who are promoting security as a commodity, a far cry from the perception of security in the interest of a public good (Buuren, 2010). The RCMP’s assumption of a service-provider role also seems to be eradicating a proposed characteristic used to differentiate private and public policing practices. Private security personnel are believed to be unique in that they are privately accountable (Brodeur, 2010). Current models of oversight committees do not allow for provinces (clients) contracting RCMP policing services to hold RCMP personnel and operational practices accountable; rather the RCMP is only subject to accountability measures by a federal oversight agency.

Public police organisations are also providing the service of public agents for private hire. In these instances of pay-duty a fee-for-service business practice is employed as a means of generating revenue (In Search of Security, Sect.3.4.2 para.5). Municipal bylaws have been introduced withholding licencing/ permit for events unless pay-duty police officers are retained[7] (In Search of Security, Sect.3.4.2 para.5). Pay-duty officers maintain the authority of public police agents even though they are retained by a private party. The municipality continues to provide insurance (through public taxes) for public police under private contract when suits of malfeasance arise (Rigakos, 2002).

With both private and public police agencies demonstrating considerable overlap of activities, it becomes increasingly difficult to ascertain the scope of powers and authority personnel in each sector may exhibit.

Of growing concern is the potential for over-stepping of powers by private security personnel. The Charter of Rights and Freedoms applies predominately to governmental activities as opposed to those of non-state organisations[8] (In Search of Security, Sect. 1.3 para.2). As the private security industry continues to expand the general public becomes increasingly more likely to encounter private personnel in both private and public settings, leading to confusion regarding the limitations of power which may be exercised and the rights of individuals. There is also concern over the increased convergence of physical appearances between private and public uniformed agents and the potential of public compliance with requests of private security personnel due to an aura of power generally reserved for public agents (Brodeur, 2010).

The Constitution Act gives Canadian Parliament the authority to enact criminal laws, as well as sets out criminal law enforcement powers of public police organisations (In Search of Security, Sect. 4.2 para.1). While there is no explicit recognition of non-state policing/ security agencies, provisions do exist regarding the law enforcement practices of non-state agents (powers which are allotted to all ordinary citizens) (In Search of Policing, Sect.4.2 para.1). Given the nature of the work private security personnel engage in, there is a greater likelihood that this collective will make use of private citizen law enforcement powers than any other grouping of individuals. The evolution of policing raises the question of whether related legislation should be amended to recognise non-state police as a separate entity from ordinary citizens.

The powers of arrest and detention afforded to private security personnel are considerably more restrictive than those granted to public agents. While state agents operate under the parameters of reasonable and probable grounds when making an arrest, private agents may only detain those who are witnessed committing an indictable offence (Security Before Justice, Part 5 para.4). As private property owners’ powers are transferable to agents acting on their behalf, private security personnel may also arrest for summary offences which are related to the private property they are tasked with securing (Security Before Justice, Part 5 para.6).

While the legal authority given to private security personnel may be more limited than that of public agents, use of uniforms and marked vehicles by the private industry are fostering confusion in the general public as to the true extent of private security authority. The use of uniforms by state police organisations allows for enhancement of police visibility to the public also allowing for divisions, and individual officers, to be easily identifiable (Brodeur, 2010). Uniforms and the distinct markings of police cruisers also create a sense of unity and authority – by making the presence of police obvious, the potential exercising of police power acts as a deterrent (Brodeur, 2010; Security Before Justice, Part 6 para.3). This same authoritative aura is being bestowed upon private personnel, leading the public to concede to the demands of private security agents even when no legal authority compels them to do so (Security Before Justice, Part 6 para.4).

The blurring of lines distinguishing public and private nodes of policing and the confusion surrounding jurisdiction and powers of private security requires regulatory measures be implemented to ensure organisations and individual agents are accountable. Current public police oversight bodies may provide a template for private security review mechanisms; however, consideration should be given as to how accountability measures presently in place may be improved.

RCMP Oversight

The Commission for Public Complaints Against the RCMP (CPC) is an independent agency created by Parliament as a means of impartial oversight and investigation of RCMP conduct (Commission for Public Complaints Against the RCMP, 2011, About Us section, para.1). The CPC is governed by the RCMP Act (1985), which outlines the processes of receiving complaints and investigation into allegations of misconduct. There is vast criticism, however, that the CPC is not sufficiently independent and growing concern from the general public regarding the impropriety of police investigating police (In Search of Security, Sect. 5.4 para.3; CPC Annual Report 2009-2010). There is also concern regarding the effectiveness of the CPC as its authority is limited to issuing recommendations, with no powers to initiate criminal proceedings or sanction those found to be involved in instances of wrongdoing.

Allowing police officers to investigate themselves in instances alleging misconduct undermines the legitimacy of oversight mechanisms. In-house and inter-departmental review of incidents of complaint does not project a sense of impartiality or fairness to the public. Not only do the investigations into alleged incidents of misconduct need to be free from partisan bias, they must also be transparent, appearing to the public to be completely objective inquiries.

Ontario’s Special Investigations Unit

The deaths of Lester Donaldson and Michael Wade Lawson (both black males shot in separate incidents by on-duty police officers) sparked public outcry for improved complaint procedures and accountability mechanisms (Clare Lewis Report, 1989, Introduction section). Based on findings and recommendations of the Claire Lewis Report: The Task Force on Race Relations and Policing (1989) Ontario’s Special Investigations Unit (SIU) was established.

The SIU in Ontario is a civilian law enforcement agency, unique in that it is completely divorced from the police, and possesses the authority to lay criminal charges against police officers where wrongdoing is found to have occurred (Special Investigations Unit, 2011, Home section, para.2). Criminal investigations are conducted by the SIU into a limited range of incidents – those involving serious injury, death, or allegations of sexual assault (SIU, 2011, What We Do section, para.1).

Private Security Accountability Mechanisms

There is a general lack of consensus with regard to accountability mechanisms in the private industry of security. While a number of proposed models exist, there is little to no conclusive research of the effectiveness of implementing a particular measure. The lack of an appropriate definition of private security, and recognition of overlap of public and private policing activities, creates great difficulty in accountability as clear parameters of acceptable performance and conduct have yet to be established.

Formal state regulation may be implemented to clearly limit the scope of activities and ensure minimum standards are met through issuance of licencing, certification, and permits. Within Canada there is no national consensus regarding minimum standards of training or employee background screening processes. Provincial governments are able to enact legislation governing private security operations in their respective jurisdictions[9].

Industry self-regulation may occur through a variety of already existing legislation governing business practices. The private security industry may be liable in civil suits launched against individual personnel and/or organisations (Buuren & Boer, 2009, Sect.5.2 para.2). Labour and employment laws may also act as a means of accountability as employees and employers are accountable to one another through various labour standards boards and union committees. Private organisations contracted to provide security services are also subject to contractual liability (Buuren & Boer, 2009, Sect.5.2 para.8) where breach of contract may arise when services provided are not in accordance with client specifications.

There has also been some suggestion of replacing public police oversight boards and establishing policing oversight boards (Buuren & Boer, 2009, Sect. 5.2, para.10). These proposed boards would oversee both private and public police agencies, recognising the growing inability to differentiate between public and private sector activities. A multitude of mechanisms may be employed – both in terms of state-regulation and security market self-regulatory practices – allowing for “robust accountability” (Buuren & Boer, 2009, Sect.5.2 para.10).

Discussion

There is a growing need to shift the focus of understanding the concept of policing from private and public nodes to policing as an activity (Brodeur, 2010; Buuren & Boer, 2009, Sect. 4 para.1). Due to the significant overlap of practices, which is now apparent, the current legislation in place governing private organisations/agents is no longer reflective of the industry’s growth especially in terms of approaches to accountability.

As privately owned security organisations are being contracted by governments and are increasingly more visible in public spaces there has been suggestion that private bodies be overseen by existing public oversight committees. This appears to stem from a presumption that the public sector is fully trained and accountable (In Search of Security, Sect.1.2 para.1); yet public police accountability mechanisms have garnered significant criticism. While some measures have been taken to improve upon the concern regarding response to citizen complaints[10], the existing system of public police governance is in need of advancement and establishment of more effective managerial practices (In Search of Security, Sect.1.3 para.4; Public Safety, 2007, Sect.1.1 para.3).

Ontario’s SIU is largely held to be the ideal template for developing an effective oversight body as it possess the unique features of being a fully civilian agency and has the power to lay criminal charges when warranted; however, some shortcomings are still apparent. As outlined by section 113 of the Police Service Act (1990), the SIU’s jurisdiction extends only to incidents involving serious injury, death, or allegations of sexual assault. Two recognised definitions of serious injury exist: the Oster definition and the Ontario Association of Chiefs of Police (OACP) definition[11]. While the SIU has been in operation for more than twenty years no uniformity has been established in how to go about defining serious injury. The Police Service Act (1990) requires police departments to forward any complaints which fall under the SIU’s jurisdiction to the SIU. While the SIU adheres to the Oster definition of serious injury, police services are given discretion over which definition they use in their departments. This is problematic as complaints made to police services may not be forwarded to the SIU for investigation as they are not believed to fall within the limited jurisdiction.

Public police oversight agencies are also widely criticised for being largely reactive in nature, only allowing for accountability ex post facto. Review by oversight bodies occurs only after an incident alleging misconduct or inappropriate practices has occurred. This practice recognises isolated instances of rogue behaviour attributing these incidents to a few ‘bad apples’ while perpetuating the myth that order exists throughout the rest of the organisation. Current oversight practices do not allow for detection or accountability of large-scale corruption in divisions and departments. It is believed that adopting a more proactive approach through use of audits conducted by oversight committees will allow for greater transparency into the operations of policing organisations (Public Safety Canada, 2007,Sect.2.5, para.1). While an increase in transparency is important, aspects of policing, as well as the general culture of the organisation may be resistant to public insight into operational practices. Accountability also pertains to the performance of organisations. Methods, such as CompStat, may be used to assess the effectiveness of an organisation in achieving aspects of its mandate.

As the private security industry and public police sector have become increasingly integrated in terms of both tasks performed and information shared, it is arguable that all policing agencies, regardless of whether state or non-state, should be overseen by the same review boards. Current public oversight bodies should have an expansion of jurisdiction so as to incorporate the private security industry. Operational reforms need to be implemented so as to increase the effectiveness and authority of existing review agencies. Oversight bodies which presently allow for police to investigate police in instances of alleged wrongdoing are not conducive to arm’s length review and are a source of contention with the public. Review boards must be independent from policing agencies and comprised of civilians. The power to lay criminal charges in instances of wrongdoing – as is seen with the SIU – needs to be granted to these civilian oversight agencies so as to improve the effectiveness of these committees as accountability mechanisms of policing.

As private and public security is becoming increasingly more integrated there is growing concern over the potential for Charter violations with respect to privacy clauses. Informal networks of information sharing between the private and public sectors are expanding (In Search of Security, Sect.1.1 para.8). Private and public organisations are regularly exchanging information about local crime and known offenders and ‘troublemakers’ (In Search of Security, Sect.3.4.1 para.1) leading to concern over how this disclosure of information may infringe on individual rights to privacy. With the private security industry becoming more prominent in areas of high policing and technology systems development there is cause for concern over private organisations having access to private personal information as well as ownership of data. State organisations and private corporations are governed by different legislation concerning privacy and access to information. This division of public and private domains is problematic as information sharing between agencies has become increasingly prevalent and liaisons between private and public policing bodies have blurred the lines of these sectors.

There is a noted propensity of private security personnel to overstep their legal authority in public places (Security Before Justice, Executive Summary section para.6). However, there appears to be some transgression on the part of public agents as well. There is a lack of clarity over the rights to privacy of those who occupy the lower end of the socio-economic spectrum living in public-housing units, shelters, or on the streets. Determining the boundaries of public and private space in this context is becoming increasingly problematic (Manikis, p.17). Without clarification of the parameters of policing being established effective accountability cannot be achieved.

 

 

References

Brodeur, J. (2010). The Policing Web. New York, NY: Oxford University.

Buuren, J. van (2009) A Report on the Ethical Issues Raised by the Increasing Role of Private Security Professionals in Security Analysis and Provision. Amsterdam: International Peace Research Institute.

Buuren, J. van & Boer, M. den (2010). Private Security Ethics: Reintroducing Public Values. In M. den Boer & E. Kolthoff (Eds.), Ethics and Security (pp. ). The Netherlands: Eleven International.

Clare Lewis Report: The Task Force on Race Relations and Policing. (April 1989). Retrieved from http://www.siu.on.ca/en/special_reports.php

Commission for Public Complaints Against the RCMP 2009-2010 Annual Report. (2010). Retrieved from http://www.cpc-cpp.gc.ca

In Search of Security: The Future of Policing in Canada. (2006). Retrieved from http://www.policecouncil.ca/reports/LCC2006.pdf

Manikis, M. (2008). Criminal Justice and the Canadian Charter of Rights and Freedoms. In J. V. Roberts & M. G. Grossman (Eds.), Criminal Justice in Canada: A Reader (pp.15-25). Toronto, ON: Nelson Education.

Marx, G. T. (1987). The Interweaving of Public and Private Police in Undercover Work. In C. D. Shearing & P. C. Stenning (Eds.), Private Polcing (pp.172-193). Newbury Park, CA: SAGE.

Police Services Act, Revised Statutes of Ontario (1990 c. P.15). Retrieved from www.e-laws.gov.on.ca/html/statutes

Public Safety Canada Task Force on Governance and Cultural Change in the RCMP. (2007). Retrieved from http://www.publicsafety.gc.ca/rcmp-grc/report-rapport-eng.aspx

Rigakos, G. (2002). The New Parapolice: Risk Markets and Commodified Social Control. Toronto, ON: University of Toronto.

Security Before Justice: A Study of the Impacts of Private Security on Homeless and Under-housed Vancouver Residents. (November 2008). Retrieved from http://www.pivotlegal.org/sites/pivotlegal.org/files/securitybeforejustice.pdf

Special Investigations Unit: Ontario. (July 25, 2011). Retrieved from http://www.siu.on.ca

 

Endnotes


[1] British Columbia, alone, has seen an increase of private security personnel by 300 percent between 1991 and 2005 (Security Before Justice, Introduction Section, p.5).

[2] Throughout Europe private/public agents ratios range from equal numbers to 2:1 in favour of private security. Canada currently has a ratio of 2:1 in favour of private security agents.

[3] The private security industry includes the obvious services of security guards and armoured vehicle personnel as well as loss prevention personnel, security consultants and engineers, forensic lab technicians, K9 units, and surveillance specialists.

[4] (E.g. shopping centres and stadiums)

[5] Pay-duty police officers are sworn state agents whose services are retained through public police agencies by private parties. The powers of state agents (law enforcement and powers surrounding arrest) are retained even while under private contract.

[6] The RCMP is under contract to provide policing to municipalities in most places across Canada. The OPP holds more than 300 individual contracts with municipalities in Ontario.

[7] Bylaws may specify certain numbers of pay-duty officers be hired depending on the type of event and number of people in attendance. Supervisory police officers may also be required depending on the number of general patrol officers needed.

[8] Unless it may be demonstrated that a non-state organisation or agent was acting on behalf of the state.

[9] British Columbia’s Security Services Act; Quebéc’s Bureau de la Sécurité Privée; Ontario’s Private Security and Investigative Services Act etc.

[10] Ontario established the SIU, a civilian oversight body with the power to lay criminal charges, and British Columbia is in the process of implementing a new independent civilian oversight agency (based largely on the SIU model) in attempts to rectify the concern of having police investigate police.

[11] The Oster definition was set by Hon. John Oster, the SIU’s first Director, and outlined serious injury to be that which was likely to interfere with the health or comfort of the victims; required admittance to a hospital; and/or resulted in broken or fractured bones or burns, the OACP definition is considerably narrower (SIU Annual Report 2009-2010, FAQ section).