Duty of Care

Definition:

A duty of care is a legal duty to take reasonable care not to cause harm to another person that could be reasonably foreseen. … In public liability law, a person can only sue for injury or damage if someone breached a duty of care they owed to the injured person.

Legal Requirements

During emergencies and everyday situations you have a duty of care towards the people you serve and are trying to help. You may also be asked to hold on to a piece of evidence before transferring possession of it to a peace officer.

What this means to you as a Security Guard: While providing First Aid, CPR or assisting otherwise, you may not quit or give up. You are obliged to continue providing help until you are relieved of your duties. Your relief might be a fellow guard or a paramedic, but you do not stop unless you have a replacement. No Exceptions!

For evidence purposes, you may not transfer any evidence to anyone other than a people officer (Police). Always take note of who received it from you. You may not lose sight of this evidence, so do not leave the area, do not give it to anyone else, or ask someone to watch it for you. Continuity of possession is vital for criminal cases and a piece of evidence that has lost this continuity is worthless.

You are legally obliged to keep records and pass on any evidence to a policer office and no one else.

The three most basic kinds of evidence that courts consider are Direct, Real and Documentary Evidence.

TYPES OF EVIDENCE:

Direct Evidence: Direct evidence is the testimony of a witness with respect to something that witness perceived with one or more of their five senses and which directly relates to one of the facts in issue. For example, when someone witnesses an assault and gives testimony that it was the accused who struck the victim. Of the different types of evidence which may be presented at trial, direct evidence provided by a witness testifying is preferred. Like any other form of evidence, the judge must determine what weight should be given to direct evidence.

Various factors can affect the reliability of direct evidence including the ability of the witness to perceive what he/she is testifying about, the witness’ ability to recall the event and the witness’ ability to express and to describe what was observed. In addition, understanding the questions asked may also affect the witness’s evidence. Judges must consider the presence of any of these factors when deciding how much weight to give the evidence.

The reliability of direct evidence can be tested by questioning the witness.

Questioning by either the accused or the Crown or the judge can assist in determining not only the witness’s credibility but also whether any factors exist that affect the reliability of the witness’s evidence, such as the fact that the witness had consumed alcohol prior to witnessing the occurrence or the existence of poor lighting conditions.

Documentary Evidence: This is evidence that was written, recorded or stored. This includes items such as documents, notebooks, cards, photographs, sound recordings, films, videotapes, computer records, etc. Experts will examine this type of evidence to make sure that it is real and of good quality. For example a video recording may have an unclear picture or sound, handwriting may be difficult to read, or a photograph may be in poor condition. These types of documents may not be accepted as reliable evidence.

Physical Evidence / Real Evidence: This includes physical objects that are shown in court demonstrations done in court. A witness usually introduces a physical object and explains where the object was found, how it was found, and where it has been kept since it was found. For example, suppose a book with the name of the accused on it was found at the scene of an assault, The witness would have to explain exactly where the book was found, how it was found and how it has been kept safe, where it could not be changed in any way, before the trail.

Physical Evidence by itself is only circumstantial. Just because the book belonged to the accused. IT doesn’t prove that the accused committed the assault. If the physical evidence is used with direct evidence such as a witness saying they saw the accused throw the book at the victim, then the evidence will be more reliable.

Circumstantial Evidence: Unlike direct evidence that relates directly to a fact in issue, circumstantial evidence is evidence which proves facts or circumstances from which the existence or non-existence of the fact in issue may be inferred.

One concern about circumstantial evidence is its reliability. For example, if the ground is wet, one may infer that it rained. However, this is not the only possible conclusion; there could have been heavy dew or a sprinkler may have been used in the area.

It is not necessary that each piece of circumstantial evidence lead inevitably to the conclusion that the accused is guilty in order to be accepted. Circumstantial evidence may be used like other types of evidence either in isolation or in conjunction with other evidence to determine guilt or lack of guilt.

Hearsay Evidence: Hearsay evidence is a statement originally made by someone other than a witness testifying at trial and which is submitted for the purpose of proving the truth of the original statement.

For example, if a witness gave evidence that at work on Tuesday, Mr. Smith told her he saw Bill punch the victim, and the purpose behind the witness’s evidence is to prove that the accused assaulted the victim, then the statement of Mr. Jones is hearsay.

Hearsay evidence may be of questionable reliability because the person who made the original statement is not present to be questioned.

Admissions: Voluntary admissions made by an accused and reported by another witness, fall outside the hearsay rule and may be admissible.

Evidence Act

There are two Evidence Acts. These are:

The Canadian Evidence Act
The Ontario Evidence Act

Personal Information Protection and Electronic Documents Act

As a Security Guard in Ontario you will be governed under the Provincial Evidence Act for most of the offences that you will deal with that are of a serious nature. The collection of and presentation of video evidence is regulated by both the Ontario Evidence Act and PIPEDA. More than likely the only evidence you will have to give will be from the issuance of Parking Enforcement activities in trafﬁc court.

The Personal Information Protection and Electronic Documents Act (PIPEDA) is a Canadian federal privacy law that governs how private sector organizations collect, use, and disclose personal information in the course of commercial activities. PIPEDA is designed to protect the privacy and personal information of individuals and ensure the responsible handling of data by businesses and organizations.

Here are the key components of PIPEDA:

Scope: PIPEDA applies to private sector organizations that collect, use, or disclose personal information in the course of commercial activities, with some exceptions. It also applies to federally regulated organizations and activities across Canada.
Consent: One of the fundamental principles of PIPEDA is the requirement for organizations to obtain informed consent from individuals before collecting, using, or disclosing their personal information. Consent must be clear, voluntary, and based on an understanding of the purposes for which the information will be used.
Limitation of Collection: Organizations can only collect personal information that is necessary for the purposes they have identified. They must specify the reasons for collecting the information at or before the time of collection.
Limitation of Use, Disclosure, and Retention: Organizations can only use or disclose personal information for the purposes it was collected, and individuals must be informed about any additional uses or disclosures. Personal information should only be retained for as long as necessary to fulfill the identified purposes.
Access and Correction: Individuals have the right to access their personal information held by organizations and request corrections if the information is inaccurate. Organizations must provide access to the information and respond to correction requests within a reasonable timeframe.
Safeguards: Organizations are required to protect personal information by implementing security measures appropriate to the sensitivity of the data. This includes safeguarding against unauthorized access, disclosure, and potential breaches.
Openness: Organizations must be transparent about their information handling practices. They should have privacy policies and practices that explain how personal information is collected, used, and disclosed.
Accountability: Organizations are responsible for the personal information under their control. This includes designating individuals or a privacy officer who will be accountable for compliance with PIPEDA.
Complaints and Enforcement: Individuals who believe their personal information has been mishandled can file complaints with the Office of the Privacy Commissioner of Canada. PIPEDA also provides the Privacy Commissioner with the authority to investigate and take enforcement actions against organizations in violation of the law.
Cross-Border Data Flow: PIPEDA allows the transfer of personal information across borders, provided organizations ensure that the information is protected in accordance with Canadian privacy standards.

It’s important to note that some provinces in Canada have their own privacy laws that are substantially similar to PIPEDA. In cases where provincial laws are deemed substantially similar, they take precedence over PIPEDA.

Overall, PIPEDA is a comprehensive privacy law that aims to balance the legitimate needs of organizations to collect and use personal information with individuals’ rights to privacy and the protection of their personal data. It provides a legal framework for ensuring the responsible and ethical handling of personal information in the Canadian private sector.

Evidence Preparation and Collection

Evidence preparation is very important. You will often be in a position to affect evidence, so for any serious crime, remember:

Do not touch anything.
Secure the area and call the police
Do not let anyone in until the police arrive and then they are in charge.
Record everything you have seen and or touched.
Do not leave the crime scene until police advise you to do so.
Do not disclose information to the media or others not directly involved with the crime scene.

Principles of Evidence Collection

Collecting evidence is a very difﬁcult task for most contract security as there is no way to properly secure, preserve and maintain continuity of evidence.

The following six steps should be followed when you encounter material you think might be evidence.

Collect the evidence
Secure the material
Preserve the evidence
Identify the items
Maintain continuity of evidence
Log what you collect

Being able to identify evidence, document, collect and package evidence correctly from a crime scene is a difﬁcult task. The following steps cover the basics. Remember it is always best to leave the collection of evidence to the professionals, if possible.

Collecting Evidence

Identify what evidence is relevant to your investigation.

Once it has been identiﬁed, then record all the details before actually collecting. Location, Temperature, Preliminary Identiﬁcation, colours etc. must be recorded in your memo book.

Photograph the evidence and use a scale (small ruler to assist with dimensions). Secure the evidence in a plastic bag and seal the bag with evidence tape and ﬁll out an evidence tag. To be admissible in a court of law, physical evidence must be properly documented and be identiﬁed by every person that has handled it. This ‘chain of custody’ begins with the person who ﬁrst collected the physical evidence.

Preserving evidence means that the evidence is not cross contaminated. Ensure that each piece of evidence is sealed in its own evidence bag. Always sign across the evidence tape with initials and date of collection.

Identify the item fully on the evidence tag and attach it to the bag. A property receipt is attached to the evidence package and must be signed over to the evidence custodian.

Every time the evidence is handled, the property receipt needs to be amended and the property log needs to be up-dated

Commonly, a security guard assigned responsibility for a site will be one of the first persons to arrive at the scene. And, while he or she will not ultimately have responsibility for investigating any crime that has resulted, he or she will play a critical role in protecting the scene (and ultimately preserving any evidence) from damage or injury. Of course, if a crime scene is not protected or is inadequately protected, crucial evidence can be damaged or even lost. Without evidence the perpetrator(s) may not ever be held accountable for their actions.

The areas that security guards may have to protect will range in size (and therefore difficulty) from an interior room with only one entrance/ exit, to a large area with many means of access, such as an apartment building.

Methods of securing a scene are as numerous as the scenes themselves. The key is to keep the ultimate objective in mind — allowing enough evidence to be preserved so that the person or persons responsible can be made accountable.

Review the situation:

What evidence is present?
How is it vulnerable?
What is the best method of protecting it until the authorities can complete their investigation?

Some evidence may be damaged or destroyed by exposure to the elements. For example, fingerprints may be washed off if exposed to rain, snow, and wind. A footprint in the dust may be disturbed by traffic in the area. Use your common sense. If you believe that evidence may be disturbed by some particular activity in the area, ask whoever is responsible to cease the activity. Do not allow strangers access to the scene until the authorities are through. Close doors and windows to prevent people from accessing the scene. Use plastic sheeting to prevent exposure of the scene to the elements. The key here is to be creative and to use whatever is at hand to assist you in preserving the evidence.

WHAT CAN I DO TO MAKE SURE THE CRIME SCENE IS PROTECTED?

If you are the first one at a scene of a crime, you may be called to give evidence in court about what you saw when you first arrived.

Crime scenes need to be preserved and left untouched until police arrive. In a way this is similar to your duty of care for evidence. Think of any of the CSI shows you have seen on TV. An undisturbed crime scene makes it possible for Police to conduct an investigation without worry of evidence contamination.

While you are waiting for the police: get medical attention for anyone who needs it take notes of anything you see, hear or smell. Make sure you record the time draw diagrams to make your notes clearer write down the names and addresses of any witnesses, and any information they give you. Ask them to stay at the scene until the police arrive include a description of anyone suspicious that you see near the crime scene make sure no one enters the scene to damage or remove evidence. You could set up a barrier with tape or anything else available, or keep a door closed protect trace evidence such as footprints, tire prints, cigarette stubs, etc. If the weather is bad, you could use a plastic sheet to cover this evidence escort all authorized people, such as fire or ambulance personnel, to the scene write down the details of any changes that were made to the original scene.

Preserving a crime scene is a crucial responsibility for security guards to ensure that evidence remains intact and uncontaminated for law enforcement investigators. Here are the steps a security guard should take, along with real-life examples and their outcomes:

Secure the Scene:
- Example: A security guard patrolling a shopping mall discovers a break-in at a retail store. The guard immediately secures the scene by restricting access to the affected area and posting a sign indicating that it is a crime scene.
Minimize Contamination:
- Example: In response to a reported assault at a nightclub, the security team intervenes to separate the parties involved and prevents others from tampering with evidence. This action helps preserve any potential forensic evidence.
Protect Physical Evidence:
- Example: A security guard at a corporate office arrives at work to find a broken window, suggesting a break-in. The guard does not touch anything and avoids disturbing potential evidence. This careful approach aids law enforcement in collecting fingerprints and other physical evidence.
Document the Scene:
- Example: In a hotel, a security guard finds an unattended bag with suspicious contents. The guard refrains from moving the bag, maintains a safe distance, and immediately contacts the police. The guard also documents the scene with photographs and written notes.
Keep a Log:
- Example: At a warehouse, a security guard notices unauthorized personnel inside the facility. The guard observes their activities from a safe distance and keeps a log of the individuals’ actions and descriptions, which assists law enforcement in their investigation.
Maintain Witness Information:
- Example: In a parking lot, a security guard witnesses a hit-and-run incident. The guard quickly records the license plate number, vehicle description, and any available details about the driver, which aids law enforcement in identifying and apprehending the suspect.
Limit Access:
- Example: After a burglary is reported at a construction site, a security guard ensures that only authorized personnel, including law enforcement and investigators, are allowed access to the scene. Unauthorized entry is prevented to maintain the integrity of the area.
Cooperate with Law Enforcement:
- Example: A security guard at a bank discovers a robbery in progress. The guard discreetly activates the silent alarm, cooperates with the police upon their arrival, and provides a detailed description of the suspect’s appearance and actions.
Maintain Evidence Chain of Custody:
- Example: At a jewelry store, a security guard apprehends a shoplifter who has stolen a valuable piece. The guard carefully secures the stolen item, preserving it as evidence for the police. The item’s chain of custody is documented and maintained.

Outcome: These actions help ensure that a crime scene’s integrity is preserved. When security guards follow these protocols, it aids law enforcement in conducting thorough investigations, collecting valuable evidence, and potentially leading to the successful identification, apprehension, and conviction of suspects. Additionally, it enhances the credibility of the evidence presented in court, contributing to the justice process.

Real life scenario

Scenario: Theft at a Retail Store

Step 1: Initial Discovery A security guard on duty at a retail store during a late-night shift observes suspicious behavior on the store’s CCTV cameras. The guard notices an individual in the electronics section who appears to be tampering with security devices on expensive gadgets.

Step 2: Secure the Scene The security guard immediately leaves the security office, informs colleagues, and heads to the electronics section without drawing attention. The guard arrives at the scene, ensures that no one else enters the area, and positions themselves at a discreet distance to observe the suspect’s actions.

Step 3: Minimize Contamination While maintaining a safe distance, the security guard avoids touching or disturbing anything in the area to prevent contamination of potential evidence. This includes not approaching the suspect or tampered items.

Step 4: Document the Scene The security guard uses a handheld device to discreetly take photos of the suspect and their activities. The guard also records details such as the time, the suspect’s appearance, and any unusual behavior that may be relevant for the investigation.

Step 5: Log Details The guard communicates with colleagues via a two-way radio to update them on the situation. They share the suspect’s description, actions, and any observed evidence tampering, ensuring there’s a clear and documented log of the incident.

Step 6: Call for Law Enforcement Once it becomes evident that a theft is in progress, and it’s safe to do so, the security guard contacts the local police, providing information about the situation, the location, and the suspect’s actions.

Step 7: Maintain Observation The security guard continues to observe the suspect discreetly, ensuring that they do not leave the scene. The guard’s presence alone can serve as a deterrent, preventing the suspect from leaving prematurely.

Step 8: Cooperate with Law Enforcement When law enforcement arrives at the scene, the security guard provides them with a detailed briefing on the situation, including the suspect’s actions and the evidence preserved. The guard follows the directions of the responding officers.

Step 9: Secure Evidence If the suspect is apprehended, the security guard assists the police in securing any evidence relevant to the investigation, such as stolen items, tools used in the theft, or any other objects that may be collected for potential forensic analysis.

Outcome: In this scenario, the security guard’s prompt and discreet actions lead to the apprehension of the suspect, the recovery of stolen merchandise, and the preservation of valuable evidence. The collaboration between the security guard and law enforcement ensures a successful outcome in the investigation and possible prosecution of the suspect for theft.

WHEN THE POLICE ARRIVE:

make sure you know who is in charge, and turn the responsibility for the scene over to that person. This is important because the court will need proof that there was no break in the chain of people in charge of guarding the evidence: complete your notes. Include the name of the person in charge and their badge number and the time when they took control of the scene; help the police as needed, then return to your normal duties.