October 3, 2017

“Active Shooters” and OHS Risk to Police: Court Ruling Mandates Robust and Timely Response to OHS Risk, No Matter How Infrequent the Risk

In a chillingly timed decision given recent events, the Royal Canadian Mounted Police (“RCMP”) has been convicted of failing to comply with its general Canada Labour Code duty to protect officers from threats from “active shooters”. The RCMP case involves a prosecution that arose out of the tragic murder of three officers and injury of others in Moncton, New Brunswick, on June 4, 2014. The RCMP was charged with four offences under Part II of the Canada Labour Code (“CLC”), specifically s.124 which requires employers to comply with a general duty to “ensure that the health and safety at work of every person employed by the employer is protected”. No express regulations or provisions exist in the CLC relating to appropriate use of force equipment and training for police services. Violations of s.124 alleging a failure to take general reasonable precautions are strict liability offences, only requiring the Crown to prove the act or omission (not intent) beyond a reasonable doubt. The onus then shifts to the defendant prosecuted to establish the defence of due diligence by proving on a balance of probabilities that it took all reasonable steps in the circumstances to avoid the event in question.
In the decision released Friday, September 29, 2017 the New Brunswick Provincial Court found the RCMP guilty of failing to provide RCMP members with appropriate use of force equipment and related user training when responding to an active threat or active shooter event in an open environment.
The Crown alleged that the RCMP failed to provide appropriate use of force equipment (including both patrol carbines and Hard Body Armour) and associated training to its members, despite having a policy requiring all general duty members to immediately respond to and stop a defined active threat, and knowing that the current RCMP use of force equipment was inadequate to ensure the safety of members when responding to incidents. Further, the Crown alleged that the RCMP also failed to provide appropriate training to both members and supervisory personnel to respond to such incidents.
The RCMP took the position that the Crown failed to prove the offences alleged because the Crown failed to prove that the RCMP failed to provide appropriate use of force equipment and associated training, as well as appropriate training for members and supervisory personnel, and failed to prove that the use of force equipment and training, as well as training, constituted reasonable precautions that should have been taken. Alternatively, the RCMP argued that it exercised due diligence by taking all reasonable steps in the circumstances to avoid the incident.
The evidence presented over the course of the 24-day hearing revealed that issues with the RCMP’s current weaponry, a twelve gauge shot gun, were identified in 2007 following inquiries and investigations into officer shootings in Alberta and Saskatchewan in 2005 and 2006. This triggered investigation into the adequacy of the current equipment and the implementation of new, more appropriate equipment. From 2007 to 2013, the updating of use of force equipment moved through the research, approval and procurement phases of the implementation and incremental rollout had begun. Patrol carbines were provided to detachments within the Provinces and Territories, assessed as having the most need. In New Brunswick, the Blackville detachment was identified as having the most need and in June 2014, patrol carbine training was underway an hour away from Moncton at CFB Gagetown.
Evidence was presented of various delays resulting from the revamping of policies and procedures on the use of Tasers (after a highly public use of force incident involving Tasers), insufficient research and mandatory procurement processes and procedures, as well as evidence that despite bureaucratic delays it would have been reasonable to have this project implemented within eighteen months.
The Court considered the first count of failing to provide appropriate use of force equipment and related training. He found that RCMP management should have been aware that the weaponry in use was not sufficient to ensure the safety of members engaged with heavily armed assailants in 2007, and if not then, at the very least they should have been aware of the serious safety risk members faced in 2010 or 2011. Court carefully considered what the RCMP did to address this risk of officers “being outgunned” once it was identified. The Court determined that although each step in the implementation process may be justifiable, the entire process must be considered as a whole and the lack of urgency and length of time taken to implement the equipment resulted in a breach of the duty of care owed to members under s.124 CLC.
An important part of the due diligence defence put forth by the RCMP was that the magnitude of the risk must be considered with its frequency. The Court rejected that argument, commenting that simply because the risk arises infrequently, does not mean that a “robust and timely” response is not required. Furthermore, ruled the Court, the plan to investigate and implement the patrol carbines was under resourced, badly managed, not properly prioritized, and lacked urgency. The Court concluded that the approach taken by the RCMP in the implementation was focused on “the odds of an event such as the Moncton murders ever happening, rather than on their duty to ensure the health and safety of its members should it happen” and found due diligence had not been established. In finding that the officers were inadequately prepared to respond to the event in question, and no due diligence was established, Judge Jackson found the RCMP guilty of count one.
The RCMP was found not guilty of counts two and three relating to the alleged failure to provide adequate training to both members and supervisory personnel on responding to an active threat or active shooter event in an open environment and a fourth charge was stayed. The specific training the Crown suggested members should have been provided did not exist, as training provided to general duty members at that time was focused on active shooter events in an enclosed area, and therefore, the precautions suggested by the Crown were not reasonable precautions that should or could have been taken. The Court found it was not reasonably foreseeable that supervisory personnel in a small city like Moncton would be faced with such a scenario, and the training suggested by the Crown was also not a reasonable precaution which ought to have been taken.
The conviction on count one means that a fine of up to $1,000,000 could be imposed on the RCMP under the CLC. A date for sentencing has not yet been set. The RCMP was previously prosecuted and convicted under the CLC in 2001, also in Atlantic Canada, when the organization entered a guilty plea on two charges following the drowning death of an officer while conducting a search of a bulk carrier for drugs. The RCMP was fined $72,500.
This case will no doubt receive detailed scrutiny by Canadian police services seeking to determine appropriate use of force measures, procedures, protective equipment and training for members in an evolving environment tragically involving ever-frequent active shooter events. It also serves as a reminder to all employers that once a serious health and safety risk has been identified, a “robust and timely” response to mitigate the risk is required, regardless of the risk’s frequency.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer
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