Canada Appeals Office on Bureau d’appel canadien en Occupational Health and Safety santé et sécurité au travail ______
CANADA LABOUR CODE PART II OCCUPATIONAL HEALTH AND SAFETY
Parks Canada Agency employer
and
Mr. Doug Martin employee
and
Public Service Alliance of Canada union
and
Bob Grundie health and safety officer
______Decision No. 02-009 May 23, 2002
Hearings were held in Calgary on August 21, 2001 and in Ottawa on October 29 to November 2, 2001, on November 26 to November 30, 2001 and from January 14 to 18, 2002.
Appearances On request from the appeals officer, hereafter referred to as the tribunal: Health and Safety Officer Bob Grundie, who submitted the following binders, entered as Exhibit U-1. Binder 1, Reasons for Decision1, containing the following sections: • Warden Law Enforcement Mandate • Strategic Direction For Parks Canada Law Enforcement Program • Standard of Care • Levels of Service • Law Plans • Risk • Studies/Assessments • Present Disposition of Personal Protective Equipment • The “Image” Concern • Interim Guidelines – Officer Safety Risk Mitigation (introduced July 12, 2000) • Risk: Incident Management Intervention Module (IMIM)
Binder 2, containing various studies and assessments Binder 3, containing various Memoranda of Understanding (MOU) between Parks Canada and police agencies in Canada as well as related material to the park warden arming issue Binder 4, containing a large number of occurrence reports and supporting material concerning incidents involving park wardens of each National Park For the employer, represented by Mr. Kirk N. Lambrecht and Mr. G. Sanderson Graham, counsels: Nikita Lapoukhine, Director General, National Parks Directorate Brian Evans, Director, Performance, Audit and Review, Parks Canada Professor Phillip C. Stenning, Department of Criminology, University of Toronto Inspector R. Keith Clark, RCMP Headquarters, Strategic Planning and Policy Branch, Ottawa Constable Lew Simms, RCMP Bike Patrol, Nanaimo Detachment, BC
For Mr. Martin and the Public Service Alliance of Canada (PSAC), represented by Mr. Andrew Raven, counsel: Randy Fingland, Senior Law Enforcement Coordinator, Jasper National Park Duane Martin, Regional Law Enforcement Specialist, Calgary, Alberta Garry Francis Bogdan, Federal Wildlife Officer, Environment Canada, Canadian Wildlife Service David Allan Hanna, District Conservation Officer for Kananaskis District Parks and Protected Areas, Alberta Community Development, Alberta John Robert Ervin, Sergeant, RCMP Depot, Regina Chris Butler, Constable, Calgary City Police
1 In this decision, a reference to the health and safety officer “Reasons for Decision” is to be read as a reference to Exhibit U-1, Binder 1. Although Binder 1 is not formally identified as “Reasons for Decision”, this expression has been utilized throughout the hearing by the parties. I will retain this expression for the purpose of this decision.
2 David Jivcoff, Senior Law Enforcement Specialist, Parks Canada Headquarters, Ottawa
HEALTH AND SAFETY OFFICER INVESTIGATION
[1] On June 5, 2000, Mr. Bob Grundie received a complaint from Mr. Doug Martin, a park warden from Banff National Park, who is an employee of Parks Canada Agency (hereafter Parks Canada or the Agency). Being the health and safety officer assigned to Banff National Park, Mr. Grundie assumed responsibility over the complaint and began to inquire into the matter. [2] The essence of Mr. Martin’s complaint is that he is not provided with all the necessary protective equipment to do his law enforcement duties. The Complaint Registration Form signed by Mr. Martin provides the following details of his complaint. It reads literally: I AM A PEACE OFFICE AS DESIGNATED UNDER THE NATIONAL PARKS ACT TO ENFORCE THE NATIONAL PARKS REGULATIONS AND FOR THE PURPOSE OF PUBLIC PEACE IN NATIONAL PARKS. I AM NOT ISSUED ALL OF THE DEFENSIVE EQUIPMENT AS DEFINED BY THE STANDARD OF CARE FOR PEACE OFFICERS IN CANADA PERFORMING SIMILAR WORK OF RESOURCE CONSERVATION LAW ENFORCEMENT. Several Parks Canada studies and management assigned teams have identified that Park Wardens performing law enforcement should be equipped and trained to the full level of defensive equipment to the standard of care of Resource Conservation officers in Canada including a sidearm. [3] The health and safety officer acknowledged that, prior to receiving Mr. Martin’s complaint, he had attended a meeting in Canmore, Alberta, in February 2000, where park wardens from Manitoba, Saskatchewan and BC met to discuss, among other things, the issue of sidearms. Much of the discussions centered on the application of the Canada Labour Code, Part II (the Code) to this issue. Similar meetings took place in other parts of the country. Thus the health and safety officer was not surprised when he received Mr. Martin’s complaint. He stated that he knew from the onset of his investigation that this issue had national implications. [4] Mr. Grundie noted that the sidearm issue was ongoing for quite some time with Parks Canada and that it was a very contentious issue. A case in point is the 1992 Buker/Frey Report2 that eloquently points out the same concerns that have been identified by the health and safety officer in the instant case. Mr. David Jivcoff, National Law Enforcement Coordinator, Parks Canada, conducted a more recent analysis3 of the arming issue in 1999. The analysis provides context to the arming issue by raising pertinent
2 Officer Safety Implications to Supervisors, Administrators and the Department, by Joe Buker and Ray Frey, 1991. 3 Firearms Issue Analysis Paper, 1999.
3 questions and defining the parameters that must be considered to understand and resolve the issue of sidearms. It states however that it is primarily a “collection of facts generated for the purposes of refining the current arming policy and to implement the partial issuance of firearms to the warden service”. [5] The health and safety officer explained that during the course of his investigation he collected numerous documents relative to the issue of providing park wardens with sidearms. Some were retained for the purpose of his investigation, some were returned to the originators and some were destroyed! [6] Mr. Grundie testified that he spoke with several persons on the issue of arming park wardens but admitted that he kept very few notes of his conversations with these persons. For example, he spoke with representatives of Canadian police agencies including the Royal Canadian Mounted Police (the RCMP), with federal park wardens, environment and wildlife enforcement officers, with provincial conservation officers, with three Parks Canada representatives (two of whom are Chief Park Wardens) and with a Human Resource Development Canada (HRDC) Labour Program Compliance manager. [7] The health and safety officer admitted that he did not interview Mr. Fisher, the Field Unit Superintendent in Banff and supervisor of Mr. Martin, about the arming issue because he was treating it as a national issue. He also elected not to formally discuss this issue with the local health and safety committee in Banff. He stated that he was looking at the broader picture and believed that it was beyond their capacity to deal with this issue. [8] The health and safety officer explained that park wardens have a dual- mandated law enforcement role: one for resource management and one as a designated peace officer. Their resource management role requires them to apply and enforce the National Parks Act and the Regulations referred to by that Act. Their role as a designated peace officer gives them responsibility for maintenance of public peace, which means that park wardens can enforce the Criminal Code. Section 25 of the Criminal Code authorizes a peace officer to use force that is “…intended or likely to cause death or grievous bodily harm…” [9] Park wardens also have a mandate to enforce other statutes. For example, they enforce the same acts that the Environment Canada Fish and Wildlife officers enforce and also enforce the federal Fisheries Act. In some provinces, park wardens have special Constable status whereas in others they have authority to enforce provincial wildlife acts. [10] There exists a Memorandum of Understanding (MOU) between Parks Canada and the RCMP. The MOU establishes that the prime area of responsibility for park wardens is resource management; they also have responsibility for maintenance of the public peace on a first responder basis. The RCMP’s prime area of responsibility on the other hand is the
4 maintenance of public peace; they also have responsibility for resource management on a first responder basis. The RCMP is “the police force of prime jurisdiction” with respect to the Criminal Code matters. [11] The health and safety officer acknowledged in his Reasons for Decision that Parks Canada recognizes “this cross-over sharing of responsibilities [that] is clearly pointed out in Parks' Canada Management Bulletin4 2.1.9: …there are times when circumstances demand each play a lead role in the other’s area of prime responsibility. Due to the isolated nature of parks, the health and safety officer observed that park wardens must work in isolated work places and in some remote locations such as the “backcountry”. They must carry out law enforcement activities, using their own resources, knowing that the police force of prime jurisdiction may not be readily available to assist them should they require their intervention due to the travel distances involved. This has happened in many instances where park wardens are the first to arrive on the scene where an offence is being committed. [12] During his investigation, the health and safety officer was made aware that two Regions of Parks Canada had commissioned independent studies to look at the issue of sidearms. The Quebec Region had commissioned the CEGEP de Trois-Rivières Study5 in March 1993 to look at the risks inherent in the duties of park wardens. The Alberta Region had commissioned the Rescue-3 Study6 in January 1997 to establish “Levels of Service7” for specific National Parks within the province of Alberta. The CEGEP study found that park wardens were at risk when carrying out their law enforcement duties and made a number of recommendations, one of which is that park wardens be provided with sidearms. The Rescue-3 Study recommended that a level 4 classification be given to all parks of Alberta. Such a level calls for the issuance of sidearms to park wardens carrying out law enforcement duties. [13] When questioned about management’s response to the above studies, Mr. Grundie replied that Mr. Gaby Fortin, Director General for Western Canada advised him that Parks Canada disagreed with the methodology that was used for those studies. The health and safety officer declared that Parks Canada was unwavering in their position on this issue notwithstanding that the provision of sidearms in this industry was considered, in his opinion, as the standard of care. Mr. Grundie opined that the industry standard8 that
4 See para. 37. 5 A Study Pertaining to the Safety of the Duties of Park Wardens in Law Enforcement, 1993. 6 Final Report Recommending a Level of Service for Alberta Region National Parks, 1997. 7 See para. 19. 8 The health and safety officer stated in the course of his testimony that he used the expressions “industry standard” and “standard of care” loosely and interchangeably. These expressions were shown by Messrs. Lambrecht and Graham to have different meanings, the latter one being a principle taken from the law of negligence that has no application in this case. Nonetheless, these
5 applied to park wardens was the provision of a sidearm, since most police officers in Canada as well as provincial conservation officers are provided with sidearms, an opinion that was not shared by Mr. Fortin. [14] Mr. Grundie also became aware that a national working group made up primarily of management representatives from Parks Canada (referred to as the “Victoria Committee”), which was formed in September 1999 to address the arming issue, recommended that some park wardens be issued sidearms. [15] Mr. Grundie indicated that he consulted with members of the RCMP on the issue of park warden safety and specifically with Dr. Gary Bell, Ph.D., and Director of Training for the RCMP at Depot, Regina, Saskatchewan. Dr. Bell is the author of a study9 that was taken into consideration by the health and safety officer during his investigation into this matter. The health and safety officer was inquiring about the devices that park wardens were carrying on their duty belt i.e. pepper spray, baton and handcuffs. He explained that he was confused with park wardens being issued with soft body armour (a.k.a. flak jackets or vests) that, he wrote, “is intended to provide protection to an individual against being shot.” He asked Dr. Bell how one could rationalize being issued all that equipment, including soft body armour, and not a sidearm. Dr. Bell’s response was “You can’t.” The health and safety officer reported that Dr. Bell stated that while Parks Canada endorse the concept of IMIM10, the Agency does not provide all the tools demanded by that model i.e. the sidearm. [16] The need for sidearms flows from the health and safety officer’s understanding of the Incident Management Intervention Model11 concept that is taught to park wardens by the RCMP. Mr. Grundie stated that this concept is based on the unpredictability of human behaviour. Depending on the situation, an officer’s presence could be sufficient to resolve a confrontation or there could be an escalation of violence requiring the officer to deliver lethal force. The sidearm is a tool used by police agencies and police like agencies in this country to deliver the lethal force component of the IMIM where an officer is confronted with grievous bodily harm or death. This tool, said the health and safety officer, is missing from the equipment that is provided to park wardens carrying out law enforcement duties. [17] Mr. Grundie expressed the view that when a park warden is first on the scene where a criminal offence is taking place, he/she is obligated to maintain public peace and respond by taking immediate action in expressions will continue to be used interchangeably in the text with the understanding that the health and safety officer was putting emphasis on his concept of “industry standard”. 9 A Report Concerning Safety in the Saskatchewan Conservation Officer Law Enforcement Role with Special Emphasis on Sidearms and Body Armour, 1996. 10 See footnote 11. 11 The IMIM is a tool developed and utilized by the RCMP [to be used by peace officers] to assess risk and manage public peace. All police agencies in Canada utilize this model or a very similar one.
6 accordance with Parks Canada Strategic Direction12. This action implies a variety of enforcement techniques that may go from calling the RCMP for assistance up to and including making an arrest if the circumstances warrant it. [18] Mr. Grundie explained that his concern about the precarious situation that park wardens find themselves in is reinforced by the fact that officers from two other federal agencies carrying out similar law enforcement duties are provided with sidearms i.e. Fisheries officers and Environment Canada Wildlife Enforcement officers. He observed that the training that park wardens receive is essentially the same as that of Fisheries officers except for the module on sidearm training that is not given to park wardens. He noted that the mandate of the Environment Canada Wildlife Enforcement officers is more limited than that of the national park wardens yet they are provided with sidearms. He is also aware that other similar mandated agencies in Canada have sidearms. He looked at this situation from what constituted the “standard of care” in this industry and concluded that it includes the provision of a sidearm. [19] The health and safety officer commented on the respective “Levels of Service” established for the various national parks and which were to be included in future Law Plans intended to address the law enforcement needs of each park. A “Level of Service” is ”the overall level which establishes the guidelines with respect to what type of law enforcement personal protective equipment will be made available/provided to a Warden”. “Levels of Service” are based on the following criteria: Program Structure, Peace Officer Status, Tasks to Wardens, Resource impacts, Visitation, Public Peace and Officer Risks. The health and safety officer disagreed with the criteria used to categorize Parks at one of the four- (4) possible levels. In a level 3 and 4 parks, restricted firearms (sidearms) are allowed whereas in a level 1 and 2 parks, only non-lethal restricted issue weapons (e.g. pepper spray and baton) would be provided. On this particular point, the health and safety officer expressed the following view in his Reasons for Decision under the heading “Levels of Service”: The problem with this type of assessment is that the selection and provision of personal protective equipment is being determined/influenced by a variety of factors other than just officer risk. It is predicated on an assumption regarding the type of visitor and the types of crimes likely to occur. The health and safety officer felt that this approach was contrary to the whole concept of IMIM, which is based on the unpredictability of human behaviour.
12 A planning process initiated by Parks Canada in 1995 that was intended to provide a renewed approach to law enforcement and compliance in all heritage areas administered by Parks Canada. See also paragraph #40.
7 [20] When asked whether he believed that the risk to park wardens of grievous bodily injury or death was associated with the increase in penalty for non- compliance to the National Parks Act, the health and safety officer answered in the affirmative. Over time, the fines have increased from $500 in 1988 for any offence related to poaching or trapping to a maximum of $250,000 and five years of imprisonment under the current Canada National Parks Act. Mr. Grundie opined that the response of an offender caught in the act would probably be consistent with what the potential is for punishment. [21] The health and safety officer added that while long arms are issued to park wardens, they are to be used strictly for wildlife purposes e.g. against an attack by an animal such as a bear, and that they are not to be used for personal protection. He explained the many disadvantages of having to use a long arm, as suggested by Parks Canada, rather than a sidearm. He was adamant that any usage of long arms for personal protection required prior approval of the Director General or the Chief Executive Officer. [22] The health and safety officer declared that he decided to take action in this case after being made aware that Mr. Tom Lee, the Chief Executive Officer (CEO) for Parks Canada, refused to accept the recommendations of his own in-house committee i.e. the Victoria Committee. Specifically, Mr. Lee wrote the following: A central element of the report of the working group dealt with the issuance of firearms including sidearms. If this measure had been accepted, a significant number of wardens might have become eligible to carry sidearms. This is not the direction we will be taking… The health and safety officer explained that the position taken by Mr. Lee, which is reflected in his memo of January 28, 2000, is consistent with the “image” that Parks Canada wishes to preserve of its warden service i.e. …a park community based service as opposed to a force. Parks Canada and its Warden Service were never intended to be a secondary police force... [23] The health and safety officer questioned whether Parks Canada was willing to compromise the safety of park wardens to preserve the above-described image despite the recognized risks associated with law enforcement. In fact, an FBI representative13 reported that the absence of a sidearm would cause park wardens to be projecting a weak officer image that is likely to put him/her at increased risk of being the target of unpredictable violence. [24] Mr. Grundie reported that Interim Guidelines were issued following Mr. Lee’s memo. They outline the measures that would be taken to mitigate the risk to officer safety. Basically, it is recommended that a patrol of two park wardens take part in planned law enforcement activities. The health and safety officer disagreed with these guidelines since he felt this would not enhance the safety of park wardens who may not have received peace officer training and are not equipped with the proper personal protective
13 Edward Davis, Federal Bureau of Investigation (FBI), Criminal Behaviour Science Unit, Quantico, Virginia, U.S.A.
8 equipment. Furthermore, the health and safety officer stated in his Reasons for Decision, “…the IMIM acknowledges that a grievous bodily harm could occur immediately upon the arrival of a Warden.” [25] The health and safety officer concluded that park wardens were in a situation of danger, as defined in the Code, by having to carry out law enforcement activities without the provision of a sidearm that he considered being an essential piece of personal protective equipment. He stated that he based his decision in this case on the results of the two independent studies referred to above as well as the recommendation of Victoria Committee. [26] In his Reasons for Decision, the health and safety officer wrote, under the heading “Conclusion”: It is an issue of whether the appropriate training and personal protective equipment is being provided by the Agency to a standard of care consistent with other Conservation Officer groups and Police agencies in this country. Within this context, risk mitigation means that all reasonable steps be taken to minimize the dangers inherent to the law enforcement activities of the Wardens. Furthermore, under the heading Action and after considering that Parks Canada’s policy was to not issue sidearms, the health and safety officer wrote: I must conclude that the Agency is not taking all reasonable steps to mitigate or safely manage the recognized risks inherent to the Warden’s law enforcement activities. [27] Having reached the above decision i.e. that park wardens were in a situation of danger when carrying out their law enforcement duties, the health and safety officer was left with selecting the appropriate direction to be issued in this case. To achieve this, the health and safety officer considered the new definition of “danger” under the recently amended Code14. With the addition of the concept of “activity” in the new definition of danger, he “…believed that the danger arose due to any current or future law enforcement activity.” [28] Mr. Grundie decided to issue two directions for danger under paragraphs 145(2)(a) and (b) of the Code. The first direction (Appendix 1) is issued to Mr. Bill Fisher, the Field Unit Superintendent at Banff National Park where Mr. Martin works and the second direction (Appendix 2) is issued to Mr. Tom Lee, CEO for Parks Canada. The health and safety officer explained that the direction to Mr. Fisher is local in nature as it applies specifically to wardens of Banff National Park whereas the direction to Mr. Lee is national in scope since it applies to all wardens expected to engage in law enforcement activities. Hence the second direction is given to the CEO of Parks Canada.
14 The amendments to the Canada Labour Code, Part II, came into force on September 30, 2000.
9 [29] The health and safety officer clarified that he considered the overall picture of enforcement activities of park wardens in his finding of danger given the wide spectrum of law enforcement activities that they engage in. However, he mentioned that the directions were meant to apply only to those park wardens that engage in law enforcement activities since not all wardens have peace officer training.
SUBMISSIONS FOR THE EMPLOYER
[30] Mr. Lambrecht provided a written overview of the position the employer is adopting in this case as well as a detailed argumentation. The tribunal finds it useful to reproduce the overview in its entirety. It reads: 1. There is no history of danger to Park Wardens conducting law enforcement without a sidearm. Assaults are rare, injury minor in nature and resulting death or grievous bodily harm unknown in modern times even though millions of persons visit Parks and other heritage areas each year. 2. Risk inherent in law enforcement activity is mitigated without issuance of sidearm as standard equipment. Park Wardens have only been required to draw their baton, or use pepper spray, once or twice since this equipment was issued. Training, equipment, interagency cooperation, use of judgement in law enforcement activity itself – these are all illustrations of effective mitigations which contribute to this safety record. 3. The Warden Service is not a police force. Its primary mandate is natural resource management. The resources of other agencies, however, are available to Park wardens as they engage in their primary resource management mandate. This includes the assignment of primary responsibility for criminal law and highway traffic enforcement to the RCMP. 4. While Park Wardens are Peace Officers, this does not compel them to sacrifice their personal safety through intervention in any situation which might conceivably arise. Park Wardens are trained that officer safety is essential to public safety. Park Wardens use their judgement on a daily basis to assess the situational factors presented in any intervention. 5. The Health and Safety Officer compared Park Wardens to police at all levels of government in Canada, and to conservation officers in many provinces of Canada. This comparison is mistaken because of the unique mandate and circumstances of Park Wardens. 6. Further, issuance of sidearms would present danger to Park Wardens by virtue of the inherently lethal consequences of the use of this equipment. Any error in judgement in this regard can have tragic consequences for the health and safety of the Park Wardens involved. 7. The employer submits that its appeal should be allowed, and that of PSAC and Mr. Martin dismissed, so that Park Wardens can return to law enforcement in the Heritage Areas of Canada.
10 [31] Policy documents, information packages as well as reports and supporting material were introduced in support of the employer’s submissions. The following represents a brief summary of the employer’s detailed argumentation in the instant case. [32] Mr. Lambrecht described in detail and chronologically the evolution of the arming issue as it relates to the mandate of park wardens. Evolution of Park Warden Mandate and Sidearm Issue [33] The contemporary mandate of the Park Warden Service was established in 1968 as a result of the Syme-Schuler Report. Emphasis was placed on developing the Park Warden as a generalist with four responsibilities i.e. • natural resource management; • public relations15; • public safety; and, • law enforcement. The natural resource management responsibility was identified as the “pre- eminent role” of the Warden Service. [34] The Syme-Schuler Report also maintained that the Warden Service should not be considered a law enforcement body, as this is not its primary role. The “generalist” concept attached to the Warden Service was reconfirmed in 1985 in a Discussion Paper that is a component of the FLEUR (Federal Law Enforcement Under Review) initiative of the Government of Canada. The Discussion Paper identified concerns relating to training, accountability, powers and interagency cooperation. With respect to the provision of sidearms to park wardens, the Discussion Paper indicated that it “…would not necessarily ease the situation and might even exacerbate it…” [35] In 1987, Parks Canada concluded a Memorandum of Understanding with the RCMP. Under the MOU, the RCMP has primary jurisdiction to investigate criminal offences. The MOU also recognizes that park wardens will investigate offences under the National Park Act and “…occasionally enforce other federal and provincial statutes…as a result of being first officer on the scene.” Mr. Lambrecht interprets the MOU to mean that the RCMP is the primary force to investigate criminal offences and that if park wardens become involved on a first responder basis, they are to call the RCMP to take over the investigation in an expeditious manner. [36] In 1988, changes were made to the National Parks Act. Amongst the changes to the Act, the term “peace officer” was introduced and the phrase “maintenance of the public peace in parks” was added as a function of park wardens. Heavier penalties for breaching the Act were also included in the changes. Contrary to Mr. Raven’s position on this matter, Mr. Lambrecht
15 Presently assigned to other uniformed staff.
11 submits that it is recognized that higher penalties have a deterrent effect. Therefore, higher penalties make the job of a park warden doing law enforcement safer, not more dangerous. [37] In 1989, Parks Canada created a national policy for law enforcement. The policy is contained in Bulletin 2.1.9 and its appended Operations and Administration Manuals. Mr. Lapoukhine, Director General, National Parks Directorate, confirmed that these documents, although intended to be interim, remain today the primary policy for law enforcement in National Parks. The policy provides for restricted issue equipment, given to park wardens who do law enforcement, including baton, pepper spray and protective vest. An April 4, 2000 Memoranda from Parks Canada to its Superintendents and Chief Park Wardens clarified that shotguns and rifles that are issued as standard equipment for the purposes of resource management are available to peace officers for self-defence purposes or in the defence of others. [38] In early 1990, the CEGEP Study referred to earlier was released. Although Parks Canada disagreed with the methodology of the study, it accepted the recommendations for enhancing the training of park wardens which included training at the RCMP Depot in Regina, Saskatchewan. The training, said Mr. Lambrecht, has emphasized officer safety and the “critical importance” of calling for assistance of a police force having jurisdiction when needed. [39] The training evolved over the years and in 1995 the RCMP adopted its own use of force model, referred to as Incident Management Intervention Model. The IMIM provides guidance in the exercise of judgement regarding appropriate use of force, and in the articulation of that judgement. Training in the IMIM has been provided to park wardens since that time. [40] In 1995. Parks Canada initiated a planning process intended to look at law enforcement in all heritage areas administered by Parks Canada. The Strategic Direction was intended to supersede Bulletin 2.1.9 following an assessment of the “Level of Service” for each heritage area. However, the Government of Canada delayed the National Direction until September 1997 due to a Program Review, initiated in 1994. Being a cost-saving exercise, the Program Review questioned whether Parks Canada should continue to do law enforcement at all or whether that work should be taken over by the RCMP. The review of the law enforcement program was conducted jointly by the RCMP and Parks Canada. The RCMP/Parks Canada review reaffirmed the difference between the mandate of the police, which is dedicated to law enforcement, and the mandate of the Warden Service, which is dedicated to park management and resource protection. The Review also confirmed that there were no duplication of services between the RCMP and Parks Canada. [41] At about the same time i.e. in January 1997, the Alberta Region commissioned the Rescue-3 Study referred to above to recommend levels of service for Alberta parks. The Rescue-3 consultant totally disagreed with
12 the methodology established in the National Direction for establishing levels of service and decided to link levels of service to the issuance of sidearms. The study recommended that all Alberta Parks be classified as Level 4- despite the fact that the authors of the study opined that “it would be negligent to make such a recommendation”. For having gone beyond its terms of reference, Parks Canada chose not to abide by the recommendation of the consultant. Under the Rescue-3 methodology, a Level 4 classification would call for the issuance of sidearms to park wardens engaged in law enforcement in Alberta. [42] In 1997, following the completion of the Program Review, the Strategic Direction was presented to Program Management Committee (currently the Executive Board) for decision. Because of the distorted situation resulting from the Rescue-3 study, which associated levels of service to the sidearm issue, the Executive Board decided to initiate a one-year test period to monitor and assess the levels of service classification system without committing to any arming option. For various reasons, the Strategic Direction process became prolonged and to this day is not completed. [43] In July 1999, Parks Canada attempted to address and resolve the arming issue separately from the Strategic Direction. A working group (the Victoria Committee) was struck to finalize recommendations for an arming policy for Parks Canada, recognizing that there would be no standard issue of sidearms to all park wardens. In October 1999, the Victoria Committee recommended a site by site review of the need for sidearms over a two-year period. In the meantime, the “Victoria Arming Policy” stipulates that “[p]ark wardens may (emphasis added) be issued, or have access to firearms [as opposed to sidearms] for officer safety purposes… in accordance with the provisions found in the National Law Enforcement Manuals. Mr. Lambrecht opined that the Victoria Committee therefore did not recommend sidearms for park wardens as alleged by the health and safety officer but merely recommended further study of the issue. [44] In January 2000, Mr. Tom Lee, CEO of Parks Canada made a final decision on the arming policy. Issuance of sidearms as standard equipment was declined in favour of alteration of law enforcement activity so as to mitigate and manage risk. Guidelines16 for risk mitigation were issued pending finalization of law enforcement planning in each park. Mr. Lambrecht submitted that “[a]ll of the witnesses, without exception, agreed that the implementation of the mitigation outlined in this document, would enhance the safety of Park Wardens doing law enforcement.” [45] Shortly after the issuance of the above Guidelines, Mr. Martin registered his complaint with the health and safety officer.
16 Interim Guidelines - Officer Safety Risk Mitigation for Enforcement Related Activities, National Law Enforcement Working Group, July 10, 2000.
13 The Investigation of the Health and Safety Officer [46] Mr. Lambrecht submits that the health and safety officer “understood the complaint of Mr. Martin to mean that law enforcement activity conducted by Park Wardens throughout the National Park system of Canada was dangerous because the wardens were not issued with “personal protective equipment” (i.e. a sidearm) as standard equipment.” The health and safety officer undertook to carry out an investigation of national character notwithstanding that he never carried out an investigation of this magnitude before. In doing so, Mr. Grundie received a great deal of evidence, some of which he destroyed. He failed to observe any law enforcement duties that might have been carried out by Mr. Martin or any other park warden. Furthermore, it is Mr. Lambrecht submission that Mr. Grundie “…did not interview a management representative of the employer (Gaby Fortin) until the very end of the investigation; and then discontinued that interview abruptly after only a few questions.” [47] The health and safety officer issued two directions (see Appendix 1 and 2) to Parks Canada that it is seeking to have rescinded. Both directions were given for danger under paragraphs 145(2)(a) and (b) of the Code. Mr. Lambrecht argued that the health and safety officer was considering an activity because he selected the word “activity” in the directions. Considering the directions, this is a clear reference to the law enforcement activity carried out by park wardens. It is also a reference to other more general type of activities such as “…investigations of possible offences.” Furthermore, when reading the Reasons for Decision, the reference to personal protective equipment is also a clear reference to sidearms. [48] The health and safety officer focused specifically on the use of sidearms because of the use of the expression “grievous bodily injury or death.” This expression justifies, in the opinion of the health and safety officer, that park wardens may have to apply lethal force in carrying out law enforcement duties if they are faced with a situation where they would have to use the equipment in self-defence. Mr. Lambrecht stated that the legal threshold for the use of a sidearm in self-defence circumstances involves the use of the expression “grievous bodily injury or death.” The Argument [49] The premise on which Mr. Lambrecht’s argument is based is that “the evidence establishes that assaults on Park Wardens are rare, injury rarer and serious injury during law enforcement activity non-existent in modern times.” Consequently, there is no need for a sidearm for park wardens to carry out law enforcement duties as this activity is been done safely. [50] Mr. Lambrecht submits that this case rests on the distinction between risk and danger. A risk is present when injury might happen which, he points out, is the basis of Mr. Martin and the PSAC case. Their case is based on the unpredictability of human behaviour. A park warden may, at any time, be in a situation where it is necessary to kill another person to protect
14 himself or herself from injury. A danger, as defined in the Code, is present when injury is reasonably expected to occur before the law enforcement activity itself can be altered. Injury, said Mr. Lambrecht, is not reasonably expected to occur simply because there is some risk. [51] Mr. Lambrecht added that many witnesses testified about the increase confidence they would have if they were carrying sidearms. This issue, which is one of comfort, is not before this tribunal as sidearms are not issued to provide comfort to park wardens but to deliver lethal force when needed. [52] Mr. Lambrecht addressed himself to the definition of “danger” in the context of the current Canada Labour Code (amended in September 2000) as well as to the Code before it was amended (the old Code). He considered the jurisprudence that existed in both cases. [53] Mr. Lambrecht pointed out that the jurisprudence under the old17 Code established that “danger” had to be real, immediate and present at the time of health and safety officer investigation. He also noted that the jurisprudence under the current Code includes the above characteristics and further provides that “danger” can be prospective18 within specified limits. However, the danger cannot be hypothetical19 or speculative. In addition to these characteristics, there must be a reasonable degree of certainty20 that an injury is likely to occur. [54] Mr. Lambrecht suggested that to determine whether conducting law enforcement activity without a sidearm constitutes a danger under the Code, one must consider: • the likelihood that the activity will cause injury (i.e. death or grievous bodily harm) to a park warden; and also • the likelihood that the injury (i.e. death or grievous bodily harm) will arise before the law enforcement activity is altered. [55] It is Mr. Lambrecht’s submission that “the ability of Park Wardens to alter the law enforcement activity itself by the exercise of good judgement, guided by training, is fundamentally important in the assessment of the likelihood of death or grievous bodily harm.”
17 Scott v. Montani (1994), 95 D.I. 157; C.L.R.B., Decision No. 1089. Coulombe v. Empire Stevedoring Ltd. (1989), 78 D.I. 52; C.L.R.B. Decision No. 47. Pratt v. Grey Coach Line Ltd. (1998), 73 D.I. 218; 1 C.L.R.B. (2d) 310. Air Canada v. Canadian Union of Public Employees, [1994], C.L.C.R.S.O.D. No.8. 18 Welbourne v. Canadian Pacific Railway Co. [2001], C.L.C.R.S.O.D. No.9, para. 18. 19 Welbourne v. Canadian Pacific Railway Co. [2001], C.L.C.R.S.O.D. No.9, para. 19. Page and Canada (Correctional Services) [2001] C.L.C.R.S.O.D. No. 16 (May 23, 2001). 20 Welbourne v. Canadian Pacific Railway Co. [2001], C.L.C.R.S.O.D. No.9, para. 20. Page and Canada (Correctional Services) and Tetley [2001] C.L.C.R.S.O.D. No. 21, (August. 21, 2001)
15 [56] It is also Mr. Lambrecht’s opinion that “…the injury in issue before the tribunal is death or grievous bodily harm, specifically, because of the [health and safety officer’s] assertion that use of a sidearm is required for self- defence.” The purpose of a sidearm is to deliver lethal force when the legal threshold21 to apply legal force is met. [57] The Supreme Court of Canada has identified three constituent elements of self-defence. They are: 1. the existence of an unlawful assault; 2. a reasonable apprehension of a risk of death or grievous bodily harm; 3. and a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. [58] To assess whether injury will occur, one must look at the facts of the case22. However, Mr. Lambrecht stated that it is difficult to examine the facts of this case since the health and safety officer received a generic complaint, about law enforcement activities generally, independent of specific facts. Mr. Grundie investigated the complaint and rendered a decision on a general basis, and without observing any specific law enforcement duties that Mr. Martin or any other park warden might have conducted. Furthermore, the one person who could have testified about the specific facts of this case and have provided the best evidence i.e. Mr. Martin, did not testify. [59] Mr. Lambrecht considered the inherent risks associated with the law enforcement duties of park wardens. The health and safety officer has acknowledged the existence of an inherent risk in law enforcement in his Reasons for Decision which means that he recognizes that in those situations, there is always some risk that exists. On this basis, the provision of a sidearm would not remove the risk of death or grievous bodily harm to park wardens. [60] Mr. Lambrecht submitted that the question of whether a sidearm is necessary to reduce inherent risk of injury to park wardens to an acceptable minimum involves a wide range of factors including: 1. the history of assaults and injury to park wardens conducting law enforcement; 2. risks associated with providing sidearms to park wardens; 3. the mandate of the Warden Service compared with other law enforcement agencies; 4. equipment, training and interagency support provided to park wardens; and
21 R. v. Petel [1994] 1 S.C.R. 3, para. 19. 22 Employees and Amalgamated Transit Union and Laidlaw Transit Ltd.- Para Transpo Division, [2001] C.L.C. R.S.O.Decision No. 19 (August 7, 2001).
16 5. the social context in which the park wardens work. Each of these factors is discussed in greater detail below.
1. The History of Assaults and Injury to Park Wardens [61] It is Mr. Lambrecht's submission that the evidence in respect of law enforcement establishes conclusively: • that assaults on park wardens are rare, i.e. “rare in absolute terms, rare in relation to the total number of law enforcement occurrences and rare in relation to the number of person visits to the National Parks.”
• that injury to park wardens from these assaults are exceptionally rare and minor in nature23; and • that the level of combative behaviour historically experienced by park wardens is such that it is almost never necessary for the wardens to use batons or pepper spray24.
2. Risks Associated with Providing Sidearms to Park Wardens [62] Mr. Graham led the submissions of Parks Canada on this point. He argued that the health and safety officer erred in presuming that a sidearm provided a complete response to risk. The evidence adduced by Professor Stenning, an expert in the use of force by police agencies in Canada, confirmed this and established that risks are introduced to those who use sidearms. These risks, which have not been considered by the health and safety officer, are: • the risk that police may be subjected to increased aggression from the public by virtue of carrying a sidearm (the “weapons effect”); • the risk that police may be victimized by their own sidearm; • the risk of inadvertent injury or death to members of the public should a sidearm be used by police; • the risk that police may kill through erroneous judgement in the appropriate use of lethal force, and be charged with manslaughter or murder as a consequence.
23 The Evans study identified six assaults and one sprained thumb in 25 months. The Jasper Study identified 10 assaults with one bruised hand as a possible injury. The Violent Occurrence Reporting System (VORS) Summary did not reveal any injury. 24 The evidence only established one incident where a baton or pepper spray was used.
17 3. Mandate and Standard of Care of the Wardens Service Compared with Other Agencies [63] Mr. Lambrecht pointed out that there existed a distinction between a police force enforcing the Criminal Code and park wardens having a resource management mandate. He asserted that the health and safety officer erred when he “…compared the Warden Service to “similar mandated law enforcement agencies in Canada” and concluded there was a “Standard of Care” that mandated a sidearm.” [64] Mr. Lambrecht gave examples of Provincial Park Warden job categories that perform law enforcement functions without sidearms. Examples near Banff are British Columbia Park Wardens or seasonal Conservation Officers in Alberta. Ontario’s Park Wardens, who have a similar mandate to Parks Canada park wardens, are authorized to exercise the power and authority of a member of the Ontario Provincial Police as it relates to enforcement of a number of Acts including the Criminal Code and do so without a sidearm. Newfoundland Conservation Officers are not equipped with a sidearm. RCMP Auxiliary Constables who have powers of arrest pursuant to the Criminal Code are not equipped with a sidearm. [65] Mr. Lambrecht explained that not all park wardens have ministerial designation to enforce sections 18 to 23 of the Canada National Parks Act which include the power of arrest and power to search. The fundamental mandate of park wardens, said Mr. Lambrecht, involves the enforcement of the Canada National Parks Act and its Regulations, and maintenance of public peace in parks. However, peace officers are not police. Park wardens only respond to criminal offences on a first responder basis and are not a police force whose mandate is the control and prevention of crime. Maintenance of the public peace is not the same as crime prevention. [66] The health and safety officer also erred in comparing park wardens to conservation officers. Mr. Bogdan, from the Canadian Wildlife Service, testified that hunters are the primary clients of the Canadian Wildlife Service and other conservation agencies that he is aware of. Their job is to approach hunters who are lawfully carrying guns and to check them for licenses. This is entirely different from a National Parks context where, except for very limited aboriginal hunting, carrying firearms is prohibited. [67] Having regard to the above examples and to the distinction between the enforcement mandates of these other agencies and that of Parks Canada, Mr. Lambrecht submits that it is clear that the health and safety officer not only misapplied the term Standard of Care but also erred in concluding on the existence of an “industry standard” for the law enforcement work done by park wardens.
18 4. Equipment, Training and Policy Direction Provided to Park Wardens [68] Mr. Graham submits that the level of equipment within the Warden Service is appropriate to the risk level within its mandate. Park wardens have a mandate of law enforcement that is fundamentally different from the mandate of police agencies that must control crimes. The personal protective equipment issued to park wardens includes baton, pepper spray, defensive vest and access to firearms such as rifles and shotguns. The equipment offers both a high level of protection and the ability to deliver lethal force should this become necessary. However, it is unlikely that park wardens find themselves in a situation of grievous bodily harm or death. No instance of this kind has been identified by the health and safety officer or in the studies done by Parks Canada and the PSAC for this hearing. [69] Mr. Graham emphasized that in those circumstances where the legal threshold for lethal force has been met park wardens may use other types of intervention strategies, such as verbal intervention, rather than using lethal force. The greatest asset of park wardens is the use of judgement that enables them to alter the law enforcement activity itself so as to manage risk effectively. [70] Park wardens receive training at the RCMP Depot in Regina, Saskatchewan. Mr. Graham argues that the training given to park wardens enables them to alter the law enforcement activity itself before there is a reasonable likelihood that injury or death occurs. Park wardens receive training on IMIM/CAPRA25, hand controls, and baton and pepper spray. [71] The IMIM/CAPRA are tools that assist in developing sound judgement about appropriate response. The safety of park wardens is a key factor in this judgement. CAPRA is a community policing strategy that is at the centre of the IMIM. In conducting continuous risk assessment of each particular situation, park wardens are to understand the importance of calling on other agencies such as armed police agencies or armed conservation agencies when conducting law enforcement operations (including poaching and special operations) since inter-agency cooperation is at the centre of Parks Canada policy regarding law enforcement. [72] Mr. Graham described the working of the IMIM/CAPRA models based mainly on the testimony of Inspector Clark. The CAPRA model describes the level of resistance an officer may encounter with the corresponding intervention options. These range from officer presence to the application of lethal force. Each situation will require an intervention adapted to the specific circumstances. Inspector Clark testified that there is no continuum of force or intervention which must be followed at any particular time. It is Mr. Graham’s submission, which is supported by Inspector Clark’s
25 CAPRA is an acronym for “Client, Acquire/Analyse information, Partnerships, Response, and Assessment of Actions”. It is a “problem-solving strategy” that is employed in assessment of situational factors in law enforcement.
19 testimony, that the IMIM does not require park wardens to intervene in all circumstances using a level of force that is one level higher than the resistance encountered, the “so-called one up principle.” [73] There are seven principles that underline the IMIM model for response options. One of these principles is officer safety. Park wardens are taught that their own personal safety is essential to the maintenance of public peace. One of the IMIM options is verbal intervention. It is the most powerful tool a warden has to resolve situations regardless of the level of resistance he/she encounters. [74] Officer presence and tactical repositioning are other important options to be considered by park wardens in carrying out law enforcement. The mere presence of a warden is a factor that must be considered during an intervention. Park wardens must consider that they are not equipped with a sidearm when exercising judgement about the most effective intervention in any situation. They are expected to call for assistance when needed however they are not obligated to sacrifice their own personal safety in order to intervene. This is a fundamental principle of the IMIM as well. Repositioning may be necessary to de-escalate a situation or to formulate a more effective intervention. [75] Sidearms are not provided to facilitate tactical repositioning as this would be contrary to the IMIM. It would not be proper for an officer to use a sidearm to gain time and distance. It is inappropriate to draw a sidearm as a threat since this could cause more trouble than disengaging. Hence tactical repositioning will provide the officer with sufficient time to reassess the situation and select the proper response option such as verbal intervention or seeking assistance from other law enforcing agencies. [76] Park wardens are also trained in the effective use of soft and hard hand control techniques e.g. carotid artery hold. Mr. Graham stated that these techniques might be used to apply lethal force. [77] Park wardens are also equipped with batons and pepper spray that can be used to subdue combative persons. Mr. Graham submits that the evidence establishes that park wardens are almost never required to resort to this level of intervention. Also, Mr. Graham noted that the baton might also be used to deliver lethal force. [78] Mr. Graham submitted that the health and safety officer erred in concluding that a sidearm, and training in how to kill with a sidearm, was required to enable park wardens to use all of the force options in the IMIM – including delivery of lethal force. They already have all the options of the IMIM. The IMIM does not dictate that a sidearm must be used to inflict lethal force. On this issue, the health and safety officer misinterpreted the evidence provided to him by Dr. Bell. It is Mr. Graham’s submission that the evidence
20 establishes that park wardens have not found it necessary in modern memory to deliver lethal force, however they have the means to deliver lethal force notwithstanding that they are not equipped with a sidearm. [79] It is particularly important for park wardens to consider obtaining assistance from the police or other armed conservation officers during poaching or special operations where their assessment reveals this to be prudent. Furthermore, only the most experienced and qualified park wardens conduct the risk assessments for such operations e.g. the execution of a search warrant. It is also Mr. Graham’s submission that there is no evidence of injury arising from assault in law enforcement involving poaching or special operations.
5. The Greater Social Context in which Park Wardens Work [80] Canadian society enjoys gun control legislation, and does not exercise a constitutional right to bear arms as in the United States. This simple fact, said Mr. Lambrecht, is a significant factor in the risk that will be presented to any law enforcement officer. Furthermore, the most visited parks all have police detachments.
Conclusion [81] It is Mr. Lambrecht’s submission that conducting law enforcement activity without a sidearm does not constitute a danger as defined in the Code. Parks Canada recognizes that there exists an inherent risk in conducting law enforcement but believes it has taken all the necessary measures to reduce the risk to an acceptable minimum. What remains, said Mr. Lambrecht, is unpredictable human behaviour that …is neither a hazard or condition which can be corrected by the application of lethal force with the use of a sidearm. Were it otherwise, every person dealing with the public would be in danger under the Canada Labour Code or every person in law enforcement would be in danger under the Canada Labour Code because of the risk of unpredictable human behaviour, however remote it may actually be in their workplace. In the case of Parks Canada, millions of people visit the parks and other heritage areas each year and the safety record for law enforcement in that setting is outstanding. [82] It is Mr. Lambrecht’s final comment that the ultimate decision whether to provide sidearms to park wardens rests with the employer given that the employer is accountable for the use of the equipment.
21 SUBMISSIONS FOR THE EMPLOYEES
[83] Mr. Raven clarified that Mr. Martin is the appellant but that the Public Service Alliance of Canada (the Alliance) is an interested party in this case. Mr. Martin is seeking to have the health and safety officer’s directions include an order calling for the issuance of sidearms to park wardens performing law enforcement duties. The appellant and the Alliance are also seeking to have the appeals officer establish a procedure for identification and arming of park wardens involved in law enforcement responsibilities. [84] Mr. Raven began his submissions by stating the following: In this case, the problem is essentially and fundamentally a systemic problem. This is not about a particular situation that faced Doug Martin. This is about a policy, a principle that Parks Canada Senior Management has steadfastly adhered to, notwithstanding repeated studies calling for change, and notwithstanding efforts [by] Park Warden staff to have this address across the country. [85] The health and safety officer repeatedly confirmed that Mr. Martin was registering a complaint on behalf of many other wardens having similar concerns. Therefore, everybody understood this as a national case. In view of this, Mr. Raven suggests that it would not be helpful to address this case from a very specific fact situation involving a particular work environment and a particular complaint. [86] Mr. Raven opened his argumentation by stating that, when considering the IMIM model, …the right and the need to utilize the lethal force response option is triggered when the officer has a reasonable fear that he or others are facing the threat of grievous, that is serious bodily harm, injury or death. There is no issue that Parks Canada accepts that lethal force option may have to be delivered by park wardens in the course of fulfilling their law enforcement duties. That is why, remarked Mr. Raven, that Mr. Fingland wears a vest. It is in anticipation and in recognition that he may face a situation of grievous bodily harm, injury or death. It is also why Parks Canada authorizes park wardens to use long arms in defence of such an attack. [87] Parks Canada acknowledges, through job descriptions, that park wardens will be threatened with serious bodily injury or death and, as a consequence, are given the protective equipment and authorized to use it. Mr. Martin’s job description was given as an example of this where it clearly states therein: There is a risk of physical assaults, serious injury and possibly death when engaged in law enforcement duties. …and may engage physical confrontations with violators who can be hostile, dangerous and armed with a weapon. Other job descriptions, applicable across the country, use similar descriptions of the hazards faced by park wardens engaged in law
22 enforcement. For example, some job descriptions use the following descriptors: … conducting body searches to violators under arrest, some of which is conducted while in isolation, i.e. back country without officer support. There is a risk of serious injury and possible death with dangerous wildlife when responding to emergencies or engaging in enforcement duties. …there is a high potential for physical violence while confronting armed poachers who know if found guilty could face fines up to $150,00026. [88] The studies i.e. CEGEP, Rescue-3 etc. that were tendered as evidence in this case as well as the testimonies of the employees’ witnesses i.e. Mr. Butler, Mr. Fingland, Mr. Martin, Mr. Bogdan and Mr. Hanna, all confirmed that a sidearm is an essential piece of protective equipment where there is a reasonable threat of serious bodily harm or death. Then, argued Mr. Raven, the only question the tribunal must answer is whether, in those circumstances, it makes sense for the safety of park wardens that they not be properly equipped with the universally accepted standard, which is a sidearm. [89] Mr. Raven highlighted the applicable provisions of the Code, the Canada National Parks Act (CNPA) and the Criminal Code to this case. With respect to the Code, Mr. Raven referred to the provisions dealing with the definition of danger under section 122.1, the affirmative obligations imposed on employers under sections 124 and 125, the duties and powers of health and safety officers under sections 127.1(10), 145(1), (2) and (2.1) and the jurisdiction of the appeals officer under sections 145.1 and 146.1. With respect to the CNPA, Mr. Raven emphasized the dual mandate of park wardens i.e. resource management and maintenance of public peace as peace officers. The law enforcement duties of park wardens are legislated under sections 18 and 19 of the Act. They have powers of arrest without warrant and search and seizure under sections 21 and 22 of the Act. With respect to the Criminal Code, park wardens, as peace officers, are authorized by section 25 to use lethal force and are provided with the protections of section 34 for doing so. [90] On a specific note, section 21 of the CNPA confirms that park wardens are given the authority to arrest without a warrant any person committing an offence under the Act or the Criminal Code. Mr. Raven explained that …the moment of arrest, the moment when an offender who is potentially dangerous believes that his freedom may be brought to an end by an arrest, is the moment at which people act spontaneously and unpredictably. Virtually all like mandated agencies are equipped with a sidearm.
26 Now increased to $250,000 and a maximum of 5 years imprisonment.
23 [91] Mr. Raven addressed himself to the definition of danger as defined under the Code. He asserted that the health and safety officer properly interpreted and applied the definition of danger to the facts of this case and seeks to have the tribunal confirm his findings. [92] Danger under the Code must be evaluated27 within the context of each particular industry and specific circumstances of the workplace. Under the recently amended Code, the new definition broadens28 the concept of danger to allow for potential hazards or conditions or future activities to be taken into account. The danger can be prospective29 to the extent that the hazard, condition or activity is capable of coming into being or action and is reasonably expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected or the activity altered. It has also been accepted in the Robin Edwards decision30 issued by this tribunal that a danger exists where the possibility of occurrence of an incident is just a matter of time. Furthermore, an inherent risk31 in a job does not mean that the employee should assume all the risks to his health and safety. [93] Mr. Raven compared the Robin Edwards decision to the example, offered on video during the hearing by Constable Butler, of an auto stop involving a shooting. In the example, a police officer pulled over an automobile for speeding. As the officer approached the vehicle, a handgun appeared out of the side window and shots were fired into the chest of the officer. The question raised by Mr. Raven is whether we should allow a park warden to approach a vehicle under similar conditions32 with a baton. According to Mr. Raven, Parks Canada does. The Investigation of the Health and Safety Officer [94] Mr. Raven feels that the investigation carried out by the health and safety officer was complete and thorough. Mr. Grundie spent hundred of hours investigating this matter. He consulted various employees of Parks Canada, including management and union representatives, and experts in the use of force such as Dr. Bell of the RCMP. He reviewed extensive documentation, including all major studies, assessments and recommendations pertinent to the arming of park wardens. [95] Mr. Grundie reviewed duties and responsibilities of park wardens under the Canada National Parks Act, Parks Canada Bulletin 2.1.9 and the Criminal Code. He considered the effect of increased penalties for poaching and trafficking offences under the CNPA. He reviewed the training of park
27 Elnicki (Stephen) (1995), 96 di 149 (CLRB no. 1105) (Quicklaw - QL), p. 5. 28 Welbourne v. Canadian Pacific Railway Company, supra, para. 17. 29 Welbourne v. Canadian Pacific Railway Company, supra, para. 18. 30 Revenue Canada and Robin Edwards [1991] C.L.C.R.S.O.D. No. 23, p.4 (QL). 31 Revenue Canada and Robin Edwards [1991] C.L.C.R.S.O.D. No. 23, p.3 (QL). 32 Constable Butler has testified that the route crossing Banff National Park is becoming a pipeline for drug trafficking.
24 wardens, the equipment given to them, the IMIM, the unpredictability of human behaviour in the context of law enforcement, and the appropriateness of using a sidearm as opposed to a shotgun or long arm. [96] On this latter point, the health and safety officer prepared a table comparing and emphasizing the undesirable characteristics of a shotgun versus the desirable characteristics of a sidearm. Furthermore, Mr. Raven referred to the Reasons for Decision of the health and safety officer at page 12, where Mr. Grundie makes the following comment: It should be noted that this aforementioned section (Restricted Issue Equipment) of the LE Operations Manual also includes soft body armour. Soft body armour is intended to provide protection to an individual against being shot. Soft body armour is widely provided to Law Enforcement Wardens along with the pepper spray and baton. Then, subsequent to an interview with Dr. Gary Bell, he adds: I asked Dr. Bell how one could rationalize being issued all that equipment, including soft body armour, and not a sidearm. Dr. Bell’s response was “You can’t.” [97] Mr. Grundie considered the “image” problem raised by Parks Canada. He examined the various protective equipment standards in force in other like mandated agencies. He also reviewed a substantial volume of occurrence reports and related material respecting actual incidents in which park wardens have been involved over the years. The Facts [98] Like Mr. Lambrecht before him, Mr. Raven explained the purpose of Bulletin 2.1.9, which constitutes the current national law enforcement policy of Parks Canada. He acknowledged the crossover sharing of responsibilities, between park wardens and the RCMP, referred to in paragraph 11 above. He noted that there is an acknowledgement in the Bulletin that there is an increase in crime. To emphasize this point, Mr. Raven suggested that the tribunal take good note of the comments of Constable Butler to the effect that the highway through Banff National Park has become part of a “drug pipeline.” [99] Mr. Raven recognizes that the law enforcement policy allows for the issuance of restricted weapons in specific circumstances but notes that all requests for sidearms made by park wardens have either been rejected or left unanswered. Park wardens involved in law enforcement are expected to enforce the poaching provisions of the CNPA, conduct special investigations, make arrests and work in back country, often alone, without proximate RCMP support. They routinely carry out special poaching investigations, which require them to undertake the surveillance of poachers, many of whom are violent. Their work descriptions recognize that they may be exposed to physical assault. A case in point is the example described by Mr. Dwane Martin in which a park warden in Quebec was brutally attacked while trying to help individuals in a stalled vehicle.
25 [100] The health and safety officer reviewed studies and evaluations, which address the issue of park warden safety. These include the studies and assessments mentioned earlier in this report i.e. the 1991 Buker and Frey Study, the 1993 CÉGEP de Trois-Rivières Study, the 1997 Rescue-3 Report, the 1999 Jivcoff Compilation Paper33 and the 1999 Victoria Committee Recommendations. These studies and assessments made specific recommendations about park wardens policy, equipment and training. Mr. Raven took issue however with the fact that the methodologies or results of the above studies and assessments were never challenged until testimony offered in the course of this hearing. [101] In addition to the above studies and assessments, the Strategic Direction Initiative of 1996 was to provide a framework for a new policy for law enforcement for national parks. While approved in principle, the Strategic Direction was never finalized or implemented. It contemplated four levels of law enforcement program delivery. Each park was to be categorized into one of four service levels. Sidearms would be issued to park wardens carrying out law enforcement duties in parks categorized at levels three and four. [102] During the same period, Parks Canada reviewed its Law Enforcement Program jointly with the RCMP34. In 1998, a Record of Decision from Parks Canada Executive Board shows that an analysis of officer safety was to be conducted. This Officer Safety Study, which in passing was never completed, was to be consistent with Parks Canada arming policy, which meant that sidearms would not be issued to park wardens. In 1999, the Victoria Committee was established to provide recommendations on refining the arming policy. The Committee identified criteria justifying the issuance of sidearms to park wardens carrying law enforcement duties. Mr. Tom Lee, CEO, rejected those recommendations categorically. Mr. Raven concludes that after 14 years of being evasive on the arming issue, Parks Canada is prepared to allow park wardens to be exposed to danger without the accepted industry protective equipment i.e. a sidearm. [103] Mr. Raven pointed out that the Strategic Direction specifically refers to a standard of care that “…would be set which is consistent with similar mandated agencies to ensure the protection of its enforcement personnel.” It also recognizes the Warden Service as being comparable to other conservation agencies. Parks Canada acknowledges, in the Interim Guidelines introduced in July 2000, the relevance of other similar mandated agencies and that the standards employed by Parks Canada were consistent to “…standards employed by other agencies responsible for similar duties in resource protection.”
33 See para.4. 34 See para. 40.
26 [104] Examples of conservation officers issued sidearms are those in the provinces of Prince Edward Island, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and Yukon. Enforcement officers performing similar law enforcement responsibilities with the Department of Fisheries and Oceans and Environment Canada Wildlife Enforcement Officers are also issued the industry standard – a sidearm. Dr. Bell's Study35 concluded that the sidearm was becoming the standard issue for conservation officers who carry peace officer status. [105] Mr. Raven acknowledges that the IMIM and other similar models do not, and cannot, mandate the use of any particular weapon or tool. Nonetheless, Mr. Raven concludes that It is an incontrovertible fact, however, that the sidearm is the protective weapon of choice for employees of virtually all similar mandated agencies for the application of lethal force as a defensive tactic. [106] The testimonies of Constable Simms and Inspector Clark of the RCMP are that tactical repositioning is always available to law enforcement officers, a suggestion that is strongly opposed by Mr. Raven. Constable Butler testified that there are many circumstances where tactical repositioning is simply not a viable option. The Alberta Association of Chiefs of Police (AACP) specifically recognizes this point in their Use of Force Model Curriculum where is states that …disengagement or tactical repositioning may not be possible in some circumstances … the safety of the public and other officers may dictate that disengagement is not an option. [107] With regard to law enforcement, the impossibility to reposition flows from the fact that human behaviour is often unpredictable. This principle is understood in the IMIM, from Dr. Bell’s Study as well as from Constable Butler who testified that 70%-75% of the assaults on peace officers are spontaneous. [108] Mr. Raven points out that the “one up principle36” referred to by many witnesses is also addressed in the RCMP training material. This principle is broadly consistent with the nature of self-defence generally. It ensures paramountcy of officer safety recognizing that unless an officer gains control of an incident, there may be a negative impact on the safety of members of the public. Mr. Raven asserts that all models affirm this. [109] Mr. Raven submits that, inherent to park wardens’ responsibilities is the obligation to conduct unknown risk vehicle stops. The moment of arrest is viewed by witnesses as the most stressful and potentially violent aspect of a peace officer’s work. Constables Butler and Simms have both testified that
35 Supra 36 See para. 72.
27 they would not conduct vehicle stops without a sidearm. An Federal Bureau of Investigation (FBI) Study37 reported that … statistics for the years 1989 through 1998 reveal the enforcement of traffic laws as a category in which one of the highest number (93 of 682) of officer deaths occurred. Constable Butler emphasized that in the conduct of routine unknown risk vehicle stops, officers confront unpredictable and potentially violent offenders, an allusion to the “drug pipeline” mentioned earlier. [110] As for the risks of being shot with the officers’ own weapons, Mr. Raven submitted that the evidence confirms that the number of officer deaths as a result of this has reduced drastically over the years. [111] The “image” concern is simply not supported by the evidence. Mrs. Bogdan and Hanna testified that they never detected any negative attitude from the public simply because they carried a sidearm. A number of studies, including Dr. Bell’s Study and FBI articles38, suggest that an officer demonstrating a weak officer image influences an offender’s decision to initiate an assault on the officer. Many examples were given by witnesses in which they felt personally vulnerable to the offender with whom they were dealing. On the point of the use of a longarm rather than a sidearm, the applicants for the employees fail to understand how park wardens arriving at campsites equipped with longarms and prepared to use them would enhance the image of Parks Canada. [112] Mr. Raven discussed at length the issue of violent occurrences. Mr. Raven observed that “Parks Canada has failed to establish a nationally- administered violent occurrence reporting system or to conclude the officer safety study, which it announced years ago. Two studies, however, have been prepared in an attempt to summarize information relating to incidents raising officer safety concerns, i.e. • Dr. Evan's Report, submitted as Exhibit E-16, and • Officer Safety Risk Assessments and Officer Safety Occurrence Reports, submitted as Exhibit U-60. [113] Mr. Raven submits that Dr. Evan's Report39 was so fundamentally flawed that it is, ultimately, unreliable given the manner in which officer safety concerns were identified. These flaws arose for three reasons according to Mr. Raven: • Dr. Evans refused to review anything but electronic data generated in the MILE Plus system and, accordingly, legitimate officer safety Occurrence Reports which would only have been identified with hard copy analysis were missed;
37 FBI Law Enforcement Bulletin, July 2000, Exhibit U-106, p. 3. 38 FBI Law Enforcement Bulletin, June 1999, Exhibit U-105, p. 2-4. 39 See footnote 24.
28 • Dr. Evans applied his own independent judgement to remove occurrence identified as raising a safety officer concern by park wardens, notwithstanding that Dr. Evans had no experience in functioning in this position; and • Dr. Evans’ report was the product of a study which, for some unknown reason, was based upon data with a host of “coding errors”. A number of examples were identified which were not picked up by Dr. Evan’s key word search notwithstanding that they met the search criteria. [114] However, Mr. Raven suggests that the Fingland Report40 is reliable. In this study, which was conducted by Jasper Park Wardens for the period of 1994- 2000, all paper Occurrence Reports were reviewed. The Report states that 300 occurrence reports, out of the approximately 9000 that were reviewed, were identified as having a (sic) least one officer safety hazard present during the occurrence. Of the 300 reports, 32% of the individuals who were the subject of those reports possessed criminal records, 14% of which were flagged with police caution. [115] The analysis of the data demonstrates that 34% of officer safety concerns arise as a result of arrests. Performing an arrest is considered to be the largest officer safety hazard. Other officer safety hazards identified were the presence of extensive violent criminal records (22%), threats made against park wardens (8%) and communication issues (9%) including problems with radio coverage, the Canadian Police Information Centre (CPIC) system, or backup generally. [116] Many examples of risks to park wardens were offered by witnesses in which they feared for their safety and particularly by Mr. Fingland. The examples were given in support of the type of hazards faced by park wardens. The following examples were highlighted by Mr. Raven : • an individual, having a criminal record and being cautioned as violent on CPIC, assaulted a warden and an RCMP officer; • an individual being cooperative at first, then suddenly becoming combative (unpredictability of human behaviour); • a poacher, having concealed a shotgun in his truck and, subsequent to the poaching investigation, shooting an RCMP officer with the concealed weapon; • wardens investigating a broken down, and stolen, vehicle on the highway, with no place to tactically reposition themselves, and in which there were firearms that had been used in an abduction and robbery; • an individual, being arrested by a warden and the RCMP for excessive speed, attacked an RCMP officer the next day and was fatally shot by the officer who feared for his life;
40 Summary of the Jasper National Park Occurrences Report (2000-09-03), Exhibit U-60.
29 • coming in contact with an individual travelling through Jasper National Park who had been the subject of an outstanding arrest for murder; • an individual robbing at gun point a warden riding his horse in the backcountry, locking up the warden in a shed and riding away with his horse; and • an individual hiding along the boundaries of the Jasper National Park and who has been accused of shooting two FBI agents. The Argument [117] Mr. Raven argues that the health and safety officer properly interpreted and applied the present definition of “danger” as interpreted by the recent jurisprudence41. It is also Mr. Raven’s opinion that the finding of danger made by the health and safety officer is entirely supported by the evidence. He further submits that, given the amount of information collected and considered by Mr. Grundie, all the additional evidence tendered by both parties during the hearing of this case only confirms the initial findings of the health and safety officer. [118] Mr. Raven submits that Parks Canada has recognized the inherent danger in the work of park wardens. In fact, said Mr. Raven, the job descriptions for park wardens specifically state that there is a risk of physical assaults, serious injury and possibly death when engaged in law enforcement duties. Consequently, Parks Canada can no longer deny that park wardens are in danger since their job descriptions already confirms this fact. [119] The evidence confirms that the activities in which park wardens are routinely involved include highway patrols, intelligence gathering, investigations of possible offences, poaching investigation, and arrests for resource management purposes and the maintenance of the peace. Mr. Raven added that these are activities that park wardens have the authority and obligation to perform pursuant to the Canada National Parks Act and Parks Canada Policy. [120] Mr. Raven stated that it must be emphasized that many of the above duties are routinely performed alone in the back country where backup from other park wardens or the RCMP is not immediately available. [121] Furthermore, the RCMP and Parks Canada, through the Memorandum of Understanding recognize a possible cross-over sharing of responsibilities, due to the isolated nature of parks and some of the law enforcement activities. Mr. Raven submits that this confirms park wardens’ responsibility to maintain the peace on a first responder basis. [122] Whether a park warden decides to become involved as a first responder in a dangerous situation calls for that warden to exercise judgement taking into account the risks and circumstances involved. Nonetheless, those
41 Welbourne, supra.
30 assessments may not account for the spontaneity with which situations can escalate such that the need for a sidearm as a piece of safety equipment becomes essential. [123] Historically, park wardens have been exposed to potentially dangerous situations such as having to deal with poachers, criminals, etc. The illegal market of wildlife resource, which is in great demand throughout the world, is another factor that increases the potential for violence against park wardens. Mr. Raven submits that it is by chance that no park warden has been seriously injured or killed in recent years and that it is just a matter of time before a tragedy occurs. [124] Mr. Raven submitted that all use of force models such as the IMIM provide for full force continuum of options which contemplates the application of lethal force in circumstances involving grievous bodily harm. While Parks Canada endorses the IMIM, it prohibits park wardens to apply lethal force with a sidearm which, Mr. Raven opined, is the standard of care accepted in virtually all similar-mandated law enforcement agencies. [125] It is Mr. Raven's submission that the evidence has demonstrated that tactical repositioning is not always possible when faced with a spontaneous attack. On this basis alone, if the appeals officer accepts the evidence of Constable Butler on this point, the appeal of Parks Canada should be rejected. [126] Mr. Raven also submits that limiting park warden law enforcement responsibilities will not protect them since this does not reduce the genuine danger they face routinely. If this were the case, there would be no need to equip park wardens with batons and pepper spray. Mr. Raven also believes that Parks Canada is miss-appreciating the underlying principles of IMIM and is erroneously assuming that park wardens can simply disengage from any situation. Mr. Raven “maintains that the full force continuum of options contained in the IMIM constitutes the appropriate risk mitigation tool for park wardens engaged in law enforcement activities and that all of the response options, including the use of lethal force with a sidearm, should be made available to park wardens, in order to protect their safety.” [127] Finally, Mr. Raven submitted that the presence of a sidearm would enhance the “image” of a park warden by contributing to the reinforcement of peace officer’s authority with the public. It would also give confidence to park wardens. Studies on this issue indicate that lack of proper equipment can be detrimental to the performance of officers who feel at greater risk by the absence of the equipment.
31 [128] Regardless of what Parks Canada thinks, there exists an industry standard relating to the provision of a sidearm with conservation agencies42 throughout Canada. The 1997 Rescue-3 Study recognized this. Most federal and provincial natural resource based agencies with similar law enforcement mandates issue sidearms to their officers. [129] It is Mr. Raven’s submission that the evidence canvassed by the health and safety officer supports the issuance of a national direction. Specifically, Mr. Raven’s proposition is “…that human behaviour is unpredictable and that numerous studies have confirmed the fact that inoffensive encounters may escalate into dangerous situations without any opportunity to reposition…” and that “…park wardens may find themselves in situations of danger regardless of the national park concerned or the precise activity of the park warden at the time.” [130] Mr. Raven is asking that the tribunal direct the employer to take the appropriate and specific steps that will lead to the provision of sidearms to park wardens engaged in law enforcement activities.
REASONS FOR DECISION
[131] The health and safety officer issued two directions to Parks Canada under the authority of paragraphs 145(2) (a) and (b) of the Code. Those provisions deal specifically with “danger” as defined in the Code. Clearly then, the issue to be decided in this case is whether “danger”, as defined in the Code, existed at the time of the health and safety officer’s investigation for park wardens engaged in law enforcement duties. Therefore my analysis of the submissions of the parties will primarily relate to the concept of “danger” as defined in the Code. However, the extensive evidence submitted by the parties in this case compels me to also address many issues raised by the parties that are relevant to the Code but not necessarily pertinent to the issue of “danger” as defined in the Code. [132] “Danger” is defined at subsection 122(1) of the Code as follows: “danger” means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.
[133] In the instant case, the directions specifically refer to the “activity” of law enforcement to describe the alleged “danger”. The applicants have also focused their attention on the law enforcement “activity” of park wardens. I
42 See list at para. 104.
32 will therefore limit my analysis to this reference recognizing that the definition of danger also considers existing or potential hazards or conditions. [134] The complaint of Mr. Martin and the submissions of Mr. Raven are that park wardens engaged in law enforcement may encounter situations that involve the potential for “grievous bodily harm and death”. The health and safety officer’s rationale for issuing the directions under appeal was that park wardens engaged in law enforcement “…may find themselves at risk of grievous bodily harm or death, [and] are not provided with the necessary personal protective equipment.” Mr. Lambrecht concurred that the type of injury contemplated in this case is a serious injury. Since I agree, I will address myself to this type of injury i.e. an injury serious enough to justify the issuance of sidearms. [135] Mr. Lambrecht has submitted that this case rests on the distinction between risk and danger. I agree with Mr. Lambrecht on this point. I find that these concepts are misunderstood by the health and safety officer and by the employees involved in this case. The health and safety officer undertook an investigation of national scope. He neglected to collect specific facts with regards to the complaint of Mr. Martin or any other park warden engaged in law enforcement. He applied, in my opinion, a set of criteria that does not meet the interpretation given to the concept of “danger” as defined in the Code. There is therefore a need to distinguish “risk” from “danger” as defined in the Code. [136] In the submission of Mr. Lambrecht, risk has been described in the following manner: “It is a recognized premise that certain jobs often expose persons to hazard(s). Death and/or bodily harm are among hazards which may be encountered and are the two which must be considered in this assessment. RISK is the degree of probability or likelihood that these two hazards will be encountered.” 43 [137] While I agree generally with this interpretation, I will use the definition of the dictionaries. The reason for this is that where a term is not defined in the Code, the common definition of the dictionary should apply. “Risk” is defined in the New Shorter Oxford English Dictionary, 1993 Edition as 1 Danger; (exposure to) the possibility of loss, injury, or other adverse circumstance. The Black’s Law Dictionary, Seventh Edition, defines “risk” as 1. The chance of injury, damage or loss; danger or hazard. To summarize the above in the context of this case, a “risk” is exposure to the possibility of injury.
43 Interdepartmental Committee of Deputy Ministers, Draft Paper for Consultation Purposes, Firearms Acquisition Analysis.
33 [138] As both Mr. Raven and Mr. Lambrecht pointed out in their submissions, I have dealt with the concept of “danger” as defined in the Code in Welbourne v. Canadian Pacific Railway Co. [2001] decision44. In that decision I wrote: [14] In this case, the issue to be decided is whether Mr. Welbourne was in a situation of danger, as defined in the Code, as a result of the blow pipe coming apart at the clamp position. Given that the Code was amended very recently i.e. September 30, 2000, there is a need to look closely at the meaning of danger under the “new” Code in order to apply the proper criteria in determining whether danger, as provided by the Code, exists.
[15] “Danger” is defined at subsection 122(1) of the Code as follows:
“danger” means any existing or “danger” Situation, tâche ou risque – potential hazard or condition or any existant ou éventuel - susceptible de current or future activity that could causer des blessures à une personne reasonably be expected to cause qui y est exposée, ou de la rendre injury or illness to a person exposed malade – même si ses effets sur to it before the hazard or condition can l’intégrité physique ou la santé ne sont be corrected, or the activity altered, pas immédiats -, avant que, selon le whether or not the injury or illness cas, le risque soit écarté, la situation occurs immediately after the exposure corrigée ou la tâche modifiée. Est to the hazard, condition or activity, notamment visée toute exposition à and includes any exposure to a une substance dangereuse hazardous substance that is likely to susceptible d’avoir des effets à long result in a chronic illness, in disease terme sur la santé ou le système or in damage to the reproductive reproducteur. system.
[16] This new definition of danger is similar to the previous definition of danger that existed in the pre-amended Code, which read:
“danger” means any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed thereto before the hazard or condition can be corrected.
[17] The current definition of “danger” sets out to improve the definition of “danger” found in the pre-amended Code, which was believed to be too restrictive to protect the health and safety of employees. According to the jurisprudence developed around the previous concept of danger, the danger had to be immediate and present at the time of the safety officer’s investigation. The new definition broadens the concept of danger to allow for potential hazards or conditions or future activities to be taken into account. This approach better reflects the purpose of the Code stated at subsection 122.1, which provides:
122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.
44 The principles established in the Welbourne v. Canadian Pacific Railway Co. [2001] decision respecting the concept of “danger”, as defined in the Code, could have guided the health and safety officer in this case. However, since the directions under appeal were issued on February 1, 2001, and the Welbourne decision, supra, on March 22, 2001, it is evident that the health and safety officer was unaware of those principles.
34 [18] Under the current definition of danger, the hazard, condition or activity need no longer only exist at the time of the health and safety officer’s investigation but can also be potential or future. The New Shorter Oxford Dictionary, 1993 Edition, defines “potential” to mean “possible as opposed to actual; capable of coming into being or action; latent.” Black’s Law Dictionary, Seventh Edition, defines “potential” to mean “capable of coming into being; possible.” The expression “future activity” is indicative that the activity is not actually taking place [while the health and safety officer is present] but it is something to be done by a person in the future. Therefore, under the Code, the danger can also be prospective to the extent that the hazard, condition or activity is capable of coming into being or action and is reasonably expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected or the activity altered.
[19] The existing or potential hazard or condition or the current or future activity referred to in the definition must be one that can reasonably be expected to cause injury or illness to the person exposed to it before the hazard or condition can be corrected or the activity altered. Therefore, the concept of reasonable expectation excludes hypothetical or speculative situations. [20] The expression “before the hazard or condition can be corrected” has been interpreted to mean that injury or illness is likely to occur right there and then i.e. immediately45. However, in the current definition of danger, a reference to hazard, condition or activity must be read in conjunction to the existing or potential hazard or condition or the current or future activity, thus appearing to remove from the previous concept of danger the requisite that injury or illness will likely occur right there and then. In reality however, injury or illness can only occur upon actual exposure to the hazard, condition or activity. Therefore, given the gravity of the situation, there must be a reasonable degree of certainty that an injury or illness is likely to occur right there and then upon exposure to the hazard, condition or activity unless the hazard or condition is corrected or the activity altered. With this knowledge in hand, one cannot wait for an accident to happen, thus the need to act quickly and immediately in such situations. [21] The expression “whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity” added to the new definition of danger is not germane to the circumstances of the present case and will not be addressed in any detail. However, for clarity and precision purposes, I refer the reader to the French version of this portion of the definition, which has the same force in law and reads “même si ses effets sur l’intégrité physique ou la santé ne sont pas immédiats”. Literally translated, this expression suggests that an injury or an illness can occur upon exposure even if the effects on the physical integrity or the health of the exposed person are not immediate. Finally, I will not address the changes in the definition of danger that concern exposure to hazardous substances since it is not an issue in the instant case.
45 Brailsford v. Worldways Canada Ltd. (1992), 87 di 98 (Can. L.R.B.). Bell Canada v. Labour Canada (1984), 56 di 150 (Can. L.R.B.).
35 [139] The Welbourne decision highlighted the important changes that were made to the legislation relative to the concept of danger. New words were inserted in the “old” definition of danger, which modified significantly the “old” definition of danger and created a new concept of danger in the current version. This new concept obviously needs to be clarified. [140] As I have said in Welbourne, supra, the “danger” can be prospective to the extent that the …activity is capable of coming into being or action and is reasonably expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected or the activity altered. (emphasis added) [141] In my opinion, the expression “before the hazard or condition can be corrected or the activity altered”, has been and remains a source of confusion within the definition of danger in the Code. The Canadian Industrial Relations Board (CIRB) has interpreted this expression in a number of cases as noted above. The CIRB concluded that the fact that Parliament has limited dangerous situation to one that is likely to occur before it can be corrected means that, on the whole, “…we are only a few degrees from the concept of “imminent danger”46. [142] To put it simply, the expression “before the hazard or condition can be corrected or the activity altered” means that once an employee is exposed to a situation that can reasonably be expected to cause injury, the injury will occur immediately when the employee will be exposed to the situation. The injury will occur before anyone has time to correct the hazard or condition or to alter the activity. Hence, the injury is impending upon exposure. [143] A difference between the “old” definition of danger and the current one lies in the fact that the current definition includes a reference to a potential hazard or condition and a future activity so that the hazard, condition or activity no longer need to be present at the time of the health and safety officer’s investigation. Hence, the health and safety officer can look beyond the immediate circumstances in existence at the time of his investigation to decide on the existence of “danger” as defined in the Code. There is however limitations to the concept of “danger” as defined in the Code. [144] The Code allows for a future activity to be taken into consideration in order to declare that “danger” as defined in the Code exists. However, this is not an open-ended expression. In order to declare that danger existed at the time of his investigation, the health and safety officer must form the opinion, on the basis of the facts gathered during his investigation, that: • the future activity in question will take place47; • an employee will be exposed to the activity when it occurs; and
46 Guénette v. CN Rail (1988), 74 di 93 (Can.L.R.B. No. 696); and Pratt v. Grey Coach Lines Ltd. (1988), 73 di 218, 1 C.L.R.B. (2nd) 310. 47 This first condition is redundant in cases where the health and safety officer has established that the activity is taking place at the time of his investigation.
36 • there is a reasonable expectation that: the activity will cause injury or illness to the employee exposed thereto; and, the injury or illness will occur immediately upon exposure to the activity. Note: The latency aspect of the injury or illness will not be addressed in this decision since this was not raised as an issue in the instant case. However, I would refer the reader to paragraph #21 of the Welbourne decision for clarification. [145] Given that the health and safety officer must investigate a situation in a factual manner and having regard to the four objective criteria listed above, hypothetical and speculative situations will continue to be excluded from the definition of danger. After all, both hypothetical and speculative situations have no firm factual basis, a direct contradiction with the concept of “danger” as defined in the Code. It is important to note at this point that although “danger” as defined in the Code may be found not to exist, a contravention may still exist. [146] In this regard, subsection 145(1) of the Code authorizes the health and safety officer to intervene in situations where the officer has evidence that measures taken by the employer are insufficient to protect the employees. Subsection 145(1) provides as follows: 145(1) A health and safety officer who is of the opinion that a provision of this Part is being contravened or has recently been contravened may direct the employer or employee concerned, or both, to (a) terminate the contravention within the time that the officer may specify; and (b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur. [147] In this case, the health and safety officer concluded “…that the Agency is not taking all reasonable steps to mitigate or safely manage the recognized risks inherent to the Wardens’ law enforcement activities.” This is, in my opinion, a finding that the employer was not complying with its general obligation under section 124 of the Code to protect its employees. Section 124 of the Code is a due diligence duty provision that has wide application. It provides: 124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected. Mr. Lambrecht’s opinion that, ultimately, the employer is responsible to decide whether sidearms must be issued to its employees is not consistent with this provision.
37 [148] In my opinion, had the health and safety officer approached the arming issue from subsection 145(1), his intervention could have proven to be more appropriate, effective and beneficial to everybody involved in this case. Having approached it from subsection 145(2) of the Code, as we will see, will frustrate the employees in this case. [149] Subsection 145(2) of the Code reads as follows: 145. (2) If a health and safety officer considers that the use or operation of a machine or thing, a condition in a place or the performance of an activity constitutes a danger to an employee while at work, (a) the officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the officer specifies, to take measures to (i) correct the hazard or condition or alter the activity that constitutes the danger, or (ii) protect any person from the danger; and (b) the officer may, if the officer considers that the danger or the hazard, condition or activity that constitutes the danger cannot otherwise be corrected, altered or protected against immediately, issue a direction in writing to the employer directing that the place, machine, thing or activity in respect of which the direction is issued not be used, operated or performed, as the case may be, until the officer’s directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the directions. [150] In the instant case, the health and safety officer opted to address the park warden safety issue under subsection 145(2) of the Code, a provision that is highly specific in that it deals with a restrictive concept that has been set at a very high standard, and in my opinion, rightly so. The concept of “danger” as defined in the Code is unique in that it only applies in exceptional circumstances. It is a concept that is strictly based on facts. Clearly then, Mr. Raven’s earlier suggestion that it would “…not be helpful to address this case from a very specific fact situation involving a particular work environment and a particular complaint” is both self-serving and contrary to the concept of “danger” as defined in the Code. [151] Park wardens have a dual law enforcement mandate: one for resource management and one for public peace. Mr. Raven has considered the specific duties of park wardens when engaged in law enforcement. The list is impressive and the risks numerous. The risks to park warden safety are widely acknowledged in park warden job descriptions. It is recognized that park wardens engaged in law enforcement duties are exposed to risks by the very nature of law enforcement. In my opinion, being generally exposed to these risks constitutes a danger48 in the broadest dictionary meaning of the word, which only provides for exposure to injury. However, this type of
48 “Danger” in the general sense of the word is defined in the New Shorter Oxford English Dictionary, 1993 Edition as 4. Liability or exposure to harm or injury; risk, peril. The Black’s Law Dictionary, Seventh Edition, defines “danger” as 1. Peril; exposure to harm, loss, pain; a menace.
38 danger does not meet the concept of “danger” as defined in the Code since this latter concept has been set at a higher standard. A “danger” as defined in the Code requires not only exposure to injury but also a reasonable expectation that an injury will occur immediately upon exposure to the current or future law enforcement activity. [152] The determination that there is a reasonable expectation that the current or future law enforcement activity will cause injury and that injury is impending when exposed to the activity of law enforcement is based on objective49 criteria. This case fails on the absence of evidence since “danger” as defined in the Code cannot be established objectively. The health and safety officer gathered no facts in this case for the simple reason that actual facts relating to the criminal behaviour of offenders are elusive when dealing with human beings. Unlike machines, human beings have intelligence and free will50. A person can decide if he or she will, or will not, cause injury, and when. Constable Butler testified that 70%-75% of assaults on peace officers are spontaneous. For these reasons, it is nearly impossible for a health and safety officer to determine the moment at which a person will assault a park warden and inflict grievous bodily harm or death. [153] After reviewing the evidence submitted by the parties, hearing the testimonies of the witnesses, analyzing the studies and assessments, receiving the submissions of Mr. Raven and Mr. Lambrecht, I am of the opinion that one theme is central and predominant in this case. It is the unpredictability of human behaviour. The witnesses that appeared before the tribunal made it clear: an assault could take place at any point in time when carrying out law enforcement duties. However, they simply cannot reliably establish if, when or under what conditions this will happen. Evidently, the witnesses were referring to hypothetical situations that have no application within the concept of “danger” as defined in the Code. [154] The study51 of Dr. Gary Bell of the RCMP is clear on this point. Dr. Bell states in his Report, page 20, under the heading Risk and Prediction of Dangerousness When, where, under what circumstances, to what degree and with what consequence cannot be ascertained with any degree of reliability. Dr. Bell further comments on the importance of the unpredictability of human behaviour, stating, on the same page: Of all the competing arguments which carry weight in this analysis, I find the issue of unpredictability to be the most compelling and inescapable. Furthermore, Dr. Bell reports, at page 22, that …no other profession is faced with the issue of “intentionality” as the most dangerous element of their work.
49 Coulombe v. Empire Stevedoring Co. (1989), 78 di 52 (Can. L.R.B.) 50 Stephenson et al. v. Solicitor General, P.S.S.R.B. File 165-2-83, 1991. 51 A Report Concerning Safety in the Saskatchewan Conservation Officer Law Enforcement Role with Special Emphasis on Sidearms and Body Armour, 1996 (Exhibit U-1, Binder 2).
39 [155] It is clear from the above that one cannot ascertain with any degree of reliability whether a law enforcement situation resulting in injury will occur. In cases of this nature, the “who”, the “what”, the “where”, the “when” and the “under what circumstances” are important criteria necessary to establish objectively the likelihood of injury and therefore of danger. Evidently, the concept of “danger” as defined in the Code is not in harmony with unpredictability of human behaviour, an inherent characteristic of law enforcement. In professions where “intentionality” is a dominant element of the job, establishing factually that “danger” as defined in the Code exists may prove to be a challenge on its own. In the absence of specific facts that will eliminate the unpredictability aspect of human behaviour, the health and safety officer will likely have to conclude on the absence of “danger” as defined in the Code since he will be faced strictly with a hypothetical or speculative situation. [156] Mr. Raven has referred the tribunal to a decision of the Saskatchewan Labour, Occupational Health and Safety Division52. As a result of that decision, Saskatchewan Conservation Officers were issued sidearms. This ruling was one document relied upon by the health and safety officer to rule that “danger” as defined in the Code existed to park wardens engaged in law enforcement. The health and safety officer, and Mr. Raven, insisted that the work of park wardens is similar to the work of Conservation Officers and that they should be provided with equivalent equipment, including sidearms. While this decision does not constitute federal jurisprudence and therefore is not binding on the tribunal, I find it to be persuasive in showing that, in the absence of evidence, hypothetical situations i.e. “what if possibilities”, cannot find application where objective criteria are considered. [157] In that case, 94 Conservation Officers employed by Saskatchewan Environment and Resource Management (SERM) refused to work under the Occupational Health and Safety Act, 1993 (the Act). The Conservation Officers complained generally that …they believed continuing enforcement duties might place them in unusually dangerous situations. They expressed the view, which is very similar to the view expressed by the witnesses for the employees in the instant case, that …every contact could be confrontational with the potential for violence, and that they felt they were not properly equipped to protect themselves. [158] The investigating Occupational Health Officer, from the Saskatchewan Labour, Occupational Health and Safety Division, ruled that 13 workers who had received real threats of violence against them were in a situation of “unusual danger”. However, the Officer ruled that the remaining 81 Conservation Officers that refused to work, on the basis of a general complaint, were not in a situation of “unusual danger” as provided by the
52 Exhibit U-1, Binder 2.
40 Act. The Occupational Health Officer stated that: It is my opinion the act or series of acts that these workers have refused to perform is not usually dangerous to the health or safety of the worker or any other person at the place of employment. That is not to say that a danger does not exist. However, the conditions described by these workers would not, in my opinion, be considered unusually dangerous. Therefore, these conservation officers are no longer entitled to refuse to perform the act or series of acts pursuant to Section 23 of the Occupational Health and Safety Act , 1993. To continue to refuse on the grounds submitted prior to October 31st may leave these workers open to discipline. A decision could not be made to support these 81 refusals for one or more of the following reasons: The refusals are of a general nature. Many respondents of the questionnaire were refusing all enforcement aspects of their job and did not indicate any unusual danger was present. Workers are obligated to perform duties assigned by the employer, unless the assignment places the worker in an unusually dangerous situation. The legislation does not provide for “what if possibilities”. A worker must have reasonable grounds to believe that if work continues a condition of unusual danger will be present… [159] The Occupational Health Officer ruled that the 81 Conservation Officers were not in “unusual danger”. However, he concluded his investigation by issuing a Notice of Contravention to SERM, a power that, as we will see later, this tribunal does not currently have. His investigation revealed that SERM had no written comprehensive violence policy as required under a specific provision of their regulations and ordered SERM to develop the policy. For reasons unknown to this tribunal, SERM decided to issue sidearms to the Conservation Officers notwithstanding that the Occupational Health and Safety Division did not order the provision of sidearms. [160] The tribunal recognizes the many efforts and initiatives undertaken by Parks Canada to protect its employees involved in law enforcement where the risk of violence is ever present. Notwithstanding this, I believe that Parks Canada has not fully assessed the risks to which park wardens are exposed to and has not developed appropriate strategies to deal with them, particularly in light of their no-sidearm policy. For example, Parks Canada has decided to provide park wardens engaged in law enforcement with body armour, which is intended to protect them in the event of a shooting, and not with its natural complement i.e. the sidearm. If the rationale for doing so was to protect park wardens in the event of a shooting, then a sidearm could be justified. If, on the other hand, it was only to appease their fear of being involved in a shooting without appropriate protective equipment, then in my opinion, the net effect of their decision is to increase the park wardens’ anxiety level and give them a false sense of security. Either way, the decision taken is a questionable decision, at least in the absence of a violence prevention program. It is little wonder that park wardens feel anxious when they confront offenders. On the one hand, their employer is
41 providing them with equipment that would normally be used to protect people from being shot. On the other hand their employer does not acknowledge that they may have to defend themselves with a sidearm. This situation is affecting park wardens’ ability to carry out law enforcement in a safe manner and needs to be addressed. As pointed out in Dr. Bell's Study, supra, The lack of this equipment (body armour and sidearm) can become a serious impediment to performance when the officers in question believe themselves to be ill prepared and at greater risk due to its absence. …Hence, in this study, the data tells us that more than three quarters of Saskatchewan conservation officers suffer from “risk of harm” anxiety on an ongoing basis. [161] In the absence of a specific incident having specific facts that could have been gathered by the health and safety officer to rule on the existence of “danger” as defined in the Code, I have considered the historical and anecdotal evidence submitted in relation to violent occurrences. Putting it simply, the historical evidence, as submitted by Mr. Lambrecht, is that “assaults are rare, injury minor in nature and resulting death or grievous bodily harm unknown in modern times…”. The anecdotal evidence i.e. the examples of situations related by the witnesses that involve exposure to violence while engaged in law enforcement activities, confirms that there are inherent risks in carrying out law enforcement duties. However, this evidence is only useful to impress on the tribunal the potential for injury faced by park wardens engaged in law enforcement. This information would be very helpful in a risk assessment. It is not useful however to decide on the existence of “danger” as defined in the Code. [162] The tribunal cannot rule positively on the existence of “danger” as defined in the Code solely on the basis of past occurrences. The notion of “danger” as defined in the Code, which includes the concept of “future activity”, does not authorize a health and safety officer to look into the past to declare that a “danger” as defined in the Code exists. “Danger” as defined in the Code is either immediate or prospective, as explained above. A “danger” as defined in the Code cannot exist retrospectively. [163] Mr. Raven has directed my attention to two specific opposing studies relating to officer53 safety concerns. The first study is the study of Dr. Brian Evans. Dr. Evans prepared a report which was tendered to the tribunal entitled "Review of Officer Safety Occurrences, Specific Safety Concerns and Injuries Associated with Law Reinforcement Activities of Parks Canada Wardens" which focused on the years 1999, 2000 and up to February 1, 2001. According to Mr. Raven, the Evans Study is so flawed that for all practical purposes, it is unreliable for the purposes of this case.
53 A reference to “officer” in the Evans’ study and in the Fingland Report should be read as a reference to park wardens.
42 [164] Mr. Raven has also referred the tribunal to a study conducted by Jasper park wardens (the Fingland Report). The Fingland Report, which is entitled Officer Safety Risk Assessments and Officer Safety Occurrence Reports, confirms that park wardens may come in contact with offenders, many of which have extensive violent criminal records, under various circumstances. [165] I accept both studies as making a valuable contribution to understanding the type of and the level of risk faced by park wardens engaged in law enforcement.
Dr. Evans’ Study [166] The tribunal acknowledges that Dr. Evans' Study is flawed. However, the tribunal is of the opinion that the flaws identified by Mr. Raven are not fatal to the study when considered in the context of the historical and anecdotal evidence submitted. [167] Dr. Evans' Study examined 24,023 occurrences, generated from electronic data contained in the Mile Plus and BRAL systems. The occurrences had taken place over a period of 25 months prior to the issuance of the directions under appeal. Of these, 825 were identified as raising a safety concern, one of the nine search criteria established for Dr. Evans’ analysis. Of those, one injury was identified (a sprained thumb). As indicated earlier, Mr. Raven had serious concerns with Dr. Evans’ Study due to the flaws it contained. [168] Notwithstanding the shortcomings of Dr. Evans’ Study, his analysis is consistent with the historical evidence and confirms that there has not been a serious injury resulting from park wardens engaged in law enforcement during the period covered. In cross-examination, Mr. Raven was able to show that at least 9 occurrence reports (mostly in Jasper Park) in the period of 1999-2000, of which Dr. Evans had tabulated 212, were not identified as officer concerns in the study when they should have been. At least 3 others were identified when they should not have been. [169] Despite the possible methodology problems, only three injury incidents were alleged. One injury occurred during the time period studied which involved a sprained thumb received during a struggle, and the two others which occurred previously, one involving two wardens who received bruising and scrapes to the knee during a struggle and the other involving a warden struggling with two men to get their guns and one of the wardens present was hit and received a cut thumb in the scuffle. [170] As Mr. Lambrecht pointed out earlier, the historical evidence does not support the allegation that park wardens engaged in law enforcement are in “danger” as defined in the Code. They are certainly exposed to the possibility of injury on a daily basis however that risk is part and parcel of
43 their job. It is a risk that has been mitigated in an effective manner to date through specialized knowledge and training and the provision of personal protective equipment. [171] Mr. Raven has not challenged or denied Mr. Lambrecht’s assertion that, despite the incompleteness of the studies, had a single death or serious injury occurred to a park warden in the past, Mr. Raven, or the park wardens involved in this case, would have promptly informed the tribunal of the occurrence. Mr. Raven could only identify incidents of a minor nature that have been missed in Dr. Evans’ Study.
The Fingland Report [172] Mr. Raven has submitted that park wardens carrying out law enforcement duties are mandated to conduct unknown risk vehicle stops. During these vehicle stops, they might encounter individuals with criminal records. In fact, in the 300 occurrence reports identified as officer safety concerns in the Fingland Report, 32% of the individuals who were the subject of those reports possessed criminal records, 14% of which were flagged with police caution. [173] The fact that people possess criminal records is insufficient to justify the existence of “danger” as defined in the Code. One must have regards to the facts of the case to decide whether “danger” as defined in the Code exists: Canada (Attorney General) v. Lavoie (1998), 153 F.T.R. 297 (Fed. T.D.). In that case, two inmates from a medium-security penitentiary were moved from segregation to general population cells due to overflow. A correctional officer refused to serve meals to the two inmates on the grounds that the employer’s segregation policy required a minimum of two officers to be present for serving meals. The investigating health and safety officer, and the Regional Safety Officer54 who heard the appeal of the decision of the health and safety officer, had concluded on the existence of “danger” as defined in the [pre-amended] Code because the employer failed to apply its segregation policy in this case. The Court ruled at paragraph 24 as follows: In my opinion, the safety officer and the regional safety officer simply presumed the existence of a danger given the Correctional Service’s failure to apply the procedure applicable to inmates being held in administrative segregation. The safety officer and the regional safety officer did not take into account the evidence before them, namely, that C and H had not manifested any sign of aggressiveness or mental disorder, had never assaulted a correctional officer and had not been convicted of violent crimes. (emphasis added) [174] It is interesting that the Court made a reference to the two inmates not having been convicted of violent crimes. Park wardens are informed through CPIC that some individuals “were flagged with police caution.” While this information, taken in isolation from other facts, is insufficient to
54 Prior to the amendments to the Canada Labour Code, Part II, the appeals officer was designated as Regional Safety Officer.
44 justify a finding that “danger” as defined in the Code exists, it certainly merits particular attention in a risk assessment. However, I would be presuming the existence of “danger” as defined in the Code if I were to accept Mr. Raven’s proposition that park wardens engaged in law enforcement are in “danger” simply because they must deal with individuals who may have criminal records or are flagged with police caution. If that was the case, all existing law enforcement agencies would have to equip their law enforcement personnel with sidearms, regardless of their mandate, since they must all at one time or another deal with people who have criminal records or have been known to be violent. One cannot reach a conclusion that “danger” as defined in the Code exists in the absence of specific evidence to that effect. [175] The studies and assessments introduced in evidence i.e. the 1991 Buker and Frey Study, the 1993 CÉGEP de Trois-Rivières Study, the 1997 Rescue-3 Report, the 1999 Jivcoff Compilation Paper and the 1999 Victoria Committee Recommendations, have identified risks that have the potential to result in injuries. Those studies recommended that park wardens carrying out law enforcement duties be provided with specific training and equipped, under some circumstances, with sidearms. There is value to these recommendations in the context of a risk assessment of law enforcement duties but not in the context of “danger” as defined in the Code. [176] None of the studies submitted brought forward evidence that would justify the use of a sidearm in situations of self-defence where the threshold for lethal force has been met. One important argument put forward by Mr. Raven in this respect is the requirement to use the “one up principle” promoted by the RCMP. According to the RCMP’s training material, the “one up principle55” is explained as follows: In order to gain control of an incident, the officer must use a level of intervention one step higher than the demonstrated resistance level of the subject. [177] This principle is consistent with self-defence generally. However, the tribunal has received no evidence56 that park wardens, while at work and carrying out law enforcement duties, were ever in a self-defence situation where they were facing grievous bodily harm or death. There is also no evidence before me that such a situation would occur in the future. Park wardens believe there is a potential for such situations to occur and anticipate that it might occur in the future. Although this is a legitimate concern, it is not one that is based on facts. The absence of positive knowledge that it will occur does not accord with the definition of “danger” as defined in the Code.
55 Public and Police Safety Pre-Course Material, Exhibit E-23, p. 6. 56 A reference to this evidence excludes the Quebec incident (see para. #99) that is not work related. In this isolated incident, a park warden, having completed his work shift and returning home, was brutally attacked while trying to help two individuals in a stalled vehicle.
45 [178] In the concept of “danger” as defined in the Code, time is of the essence. Mr. Raven referred to the decision of Revenue Canada and Robin Edwards [1991] C.L.C.R.S.O.D. No 23, wherein I stated that “danger” exist where the possibility of occurrence of an incident is just a matter of time. In that case, a Customs Officer was accompanying a Port driver to transport large sums of cash in a marked vehicle. The Customs Officer refused to work because he was not trained to protect himself against a robbery or violence. The media had informed the public that a marked customs vehicle was transporting large amounts of money. The police authorities advised against continuing the transportation of large sums of money to financial institutions given the widespread public knowledge of this situation. The safety officer, and under review, the Regional Safety Officer, ruled that “danger” existed to the employee. I wrote: In my opinion, the danger in this case is the fact that the risk of robbery and robbery with violence has increased to the point where it is no longer acceptable to Mr. Edwards or to the police authorities. It is not a risk so remote that it is unlikely to occur. On the contrary, it is a daily risk where the probability of occurrence of a robbery, given the prevailing circumstances, is a matter of time. I am of the view that the daily and regular transportation of large sums of cash, known to the public in general, by Revenue Canada, Customs and Excise, in a marked van, with inadequate equipment and unqualified personnel to act as an escort creates a situation where the risk of robbery is immediate. Therefore, there exists in Mr. Edwards' work place a condition that can reasonably be expected to cause injury. The mere fact that no robbery has occurred to date is, I believe, a matter of chance. I also believe that time and luck are running out and that Mr. Edwards should not have to put his health and safety at risk to prove his contention that danger exists.
[179] The facts in Mr. Edwards’ case were persuasive that there was a reasonable expectation that Mr. Edwards would be injured and that the injury would occur immediately when transportation of the money would resume. Common sense dictated that it was only a matter of time before he would be injured, meaning that in all likelihood, he would encounter a violent attack the next time he would transport the money. The decision that “danger” existed to Mr. Edwards was based on a number of facts. Facts are what are missing in the Parks Canada case. [180] However, I do agree with Mr. Raven’s proposition that The fact that risk or danger may be inherent to the work itself does not mean that the worker should be expected to assume all risks to his health and safety as part and parcel of his job. The employer must take the necessary measures to decrease the risk to a minimum. [181] The parties in this case informed me that the sidearm issue has been at the centre of discussions for the last 14 years. The 1991 Buker and Frey Study has highlighted this point amply. Mr. Lapoukhine acknowledged that Parks Canada has not been diligent in this respect. Moving forward on the arming issue has been laborious and contentious. This is probably due, in part, to employees’ perception that Parks Canada is entrenched in a no-sidearm
46 issuance “policy”. There are good reasons for them to believe this since all requests for issuance of restricted firearms (sidearms) have been denied to date irrespective of the conclusions drawn by the studies entered into evidence. In my opinion, this “policy” undermines Parks’ Canada efforts and initiatives with respect to park warden safety. [182] Mr. Raven has further submitted that the sidearm is the protective weapon of choice for employees of virtually all similar mandated agencies for the application of lethal force as a defensive tactic. Based on the comparison offered by Mr. Raven and Mr. Lambrecht with respect to those agencies that are provided with sidearms and those that are not, it would appear that Mr. Raven is correct. The vast majority of agencies carrying out similar mandated law enforcement duties are equipped with sidearms. These also include the federal agencies identified above. This comes very close to constituting the “industry standard” referred to by the health and safety officer. [183] The health and safety officer was convinced that an “industry standard” existed. The Rescue 3-Study acknowledged its existence. However, it appears that the federal government, as the employer of many employees involved in law enforcement activities, has no uniform policy with respect to the provision of sidearms although, in my respectful opinion, one should exist. In light of this, I can understand the position taken by the health and safety officer in this respect. However, an "industry standard”, if it were to exist, cannot of itself justify a finding that “danger” as defined in the Code exists. [184] The tribunal is troubled by the apparent inability, or unwillingness, of Parks Canada to complete a health and safety hazard analysis or “officer safety analysis” which could have set at rest this issue. This is, in my respectful opinion, the single most important issue to be resolved. Employee health and safety is one of the founding principles of the Code. In accordance with the Code, the “officer safety analysis” should be conducted in close consultation with Parks Canada’s Policy Committee established under the Code since the issue of arming of park wardens is national in scope. It should complement the “Levels of Service” initiative, not only supplement it. [185] The “officer safety analysis” should assess the risks related to the duties of park wardens specifically in the context of their dual mandate. It should recognize that although park wardens engaged in law enforcement are not a police force, they are mandated to carry out police-like responsibilities such as making arrests, investigating poachers, carrying out searches and seizures etc. In the real world, the distinction may not be obvious to the offender. [186] Carrying out an objective “officer safety analysis” should be a priority for Parks Canada, before it becomes a priority for another health and safety officer. Evidently, it should not hinge on the issuance or non-issuance of sidearms. Objectivity in this case may only be achieved with the involvement
47 of a health and safety officer. An objective “officer safety analysis” might inform Parks Canada which duties involve high risks to park wardens and what type of specialized training and equipment is required to perform the job safely. [187] The “officer safety analysis” would also give Parks Canada the opportunity to reconsider its no-sidearm issuance policy and it’s continued involvement in law enforcement activities. Parks Canada could also decide whether it would be appropriate, if the “officer safety analysis” results in the identification of high risk duties where sidearms are required, to create a separate park warden “force” dedicated to specific law enforcement duties. In any event, Parks Canada must ensure that the health and safety of its employees is fully protected when carrying out the police-like law enforcement duties that are recognized in Policy Bulletin 2.1.9 where it states: …there are times when circumstances demand each play a lead role in the other’s area of prime responsibility. (Emphasis added) [188] It is clear that when park wardens are the first to arrive on the scene where an offence has been or is being committed, they are expected to take some action57. Many witnesses testified that often, after calling for assistance from the RCMP, they are asked to take the lead because an RCMP officer is either unavailable or will be delayed. This situation is placing park wardens carrying out law enforcement activities at increased risk. Given the number and the variety of law enforcement activities that park wardens are involved in, common sense alone dictates that there will be times when it will be impossible for them to retreat from the scene and reposition in order to evaluate the proper course of action to be taken. Clearly, the time has come for a full and objective assessment of the risks to which park wardens engaged in law enforcement are exposed to. [189] I am of the opinion that the health and safety officer had sufficient powers under the Code to address the issue of park warden safety from a national perspective. For example, he could have directed the employer to provide him with a risk assessment of park warden duties that qualify and quantify the risks to which park wardens engaged in law enforcement throughout the national parks are exposed to. With this information, the health and safety officer could have identified duties where, in his professional opinion and on the basis of evidence, control measures in place were insufficient to protect the employees, particularly since he was interested in carrying out a national investigation.
57 Paragraph 6 of the Memorandum of Understanding, English version, between the RCMP and Parks Canada appears to indicate that parks wardens are authorized to take action in a first responder situation whereas the same paragraph, French version, appears to indicate that they must take action. See Exhibit U-1, Binder 3.
48 [190] Rather, the health and safety officer performed mostly a paper exercise by researching and analyzing the law enforcement policy of Parks Canada. The reality in this case is that the health and safety officer gathered no evidence of the existence of “danger” as defined in the Code for Mr. Martin or for any other park warden throughout the national parks. Nonetheless, the health and safety officer issued a national direction for “danger” as defined in the Code without evidence to support his finding. It is noteworthy that the health and safety officer did not issue a consequential direction to each employee affected by the directions as required by subsection 145(2.1) of the Code, which reads: (2.1) If a health and safety officer considers that the use or operation of a machine or thing by an employee, a condition in a place or the performance of an activity by an employee constitutes a danger to the employee or to another employee, the officer shall, in addition to the direction issued under paragraph (2)(a), issue a direction in writing to the employee to discontinue the use, operation or activity or cease to work in that place until the employer has complied with the directions issued under that paragraph. Complying with subsection 2.1 above could prove to be very difficult in some cases, including the instant case. Based on subsection 145(2.1) above, I would believe that national directions for “danger” as defined in the Code would be very rare. They would certainly require a nationally coordinated effort to gather evidence about the existence of “danger” as defined in the Code and to identify which employees are in fact in danger. [191] Mr. Raven has suggested that subsection 146.1(1) of the Code authorizes the tribunal to vary the appealed directions or to issue a new direction should I find this to be necessary. Subsection 146.1(1) provides as follows: 146.1(1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may (a) vary, rescind or confirm the decision or direction; and (b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1). [192] While Mr. Raven’s suggestion has merit, it also has limits. Subsection 146.1(1) does not extend the power of the tribunal to issue a new direction under subsection 145(1) of the Code for a contravention should I rule on the non-existence of “danger” as defined in the Code. This has already been confirmed by the Federal Court of Appeal in Syndicat des débardeurs, SCFP Section Locale 375 c. Les Terminus Maritimes Fédéraux, Division FEDNAV Limitée Montréal (Québec), File No. A-349-00. In that case, Chief Justice Richard upheld the Trial Division’s decision, File No. T-938-99, to uphold the Regional Safety Officer (R.S.O.) decision No. 99-010. [193] In R.S.O. decision No. 99-010, I rescinded several directions for “danger” issued by a health and safety officer on the basis that the situations investigated by the officer did not constitute “dangers” as defined in the
49 Code. I concluded that the situations investigated were dangers in the general sense of the word or infractions to the Code and the pursuant Canada Occupational Health and Safety Regulations. I also concluded that I did not have powers to convert a direction for danger into a direction for a contravention. This decision is important to this case because subsection 146.1(1) limits the authority of this tribunal strictly to the issue of “danger” before it. [194] While I agree with the following observations from Mr. Lambrecht, i.e. • that assaults on park wardens are rare; • that injury to park wardens from these assaults are exceptionally rare and minor in nature; and • that the level of combative behaviour historically experienced by park wardens is such that it is almost never necessary for the wardens to use batons or pepper spray[,] I am of the opinion that much of the credit for these observations should be bestowed upon park wardens. Nevertheless, in view of these observations, I fail to see the wisdom in concluding, without evidence, that park wardens engaged in law enforcement are in “danger” as defined in the Code such that it would justify the issuance of sidearms. [195] However, this is not to say that the status quo at the time of the health and safety officer’s investigation was satisfactory. Much of the work of a park warden involved in law enforcement activities is to enforce the Canada National Parks Act, on occasion, against people who possess criminal records, who are violent, who are contravening the law and who are intent on not being arrested. On this basis alone, performing an objective “officer safety analysis” becomes an urgency in order to establish under which situations, if any, park wardens may be exposed to “grievous bodily harm or death”. As the tribunal deciding this case, I suspect that such situations may exist. [196] In the final analysis, the health and safety officer established the potentiality of injury to park wardens involved in law enforcement activities without regards to the reasonable expectation that an injury must occur immediately upon exposure to the law enforcement activity. On that basis, he declared that “danger” as defined in the Code existed to park wardens engaged in law enforcement activities. In my opinion, the health and safety officer ruled on the hypothetical possibility that injury might occur since he obtained no evidence that an injury would occur upon exposure to current or future law enforcement activities. He ruled basically that park wardens engaged in law enforcement activities were exposed to risks and that these risks had the potential to cause injury. The health and safety officer did not establish that there was a reasonable expectation that injury would occur to park wardens carrying out law enforcement duties and he certainly did not establish that there was a reasonable expectation that an injury would occur immediately upon exposure to the current or future law enforcement activities.
50 [197] In any case, the determination of what level of law enforcement involvement and what specific protective measure should be recommended for each and every park warden duty is a matter of risk analysis and control. It is not helpful in the context of unpredictable human behaviour to declare that “danger” as defined in the Code exists in the absence of evidence that would establish this. I am of the opinion that, in the end, the health and safety officer confused risk with “danger” as defined in the Code. To put it in general terms, he confused what might happen with what will happen. [198] As I have said above, section 124 of the Code is a due diligence duty provision. It is also a very powerful provision. Under that provision, the employer must ensure that the health and safety of its employees at work is protected. I am of the opinion that this provision is sufficiently broad in scope to cover all professions where “intentionality”, or the unpredictability of human behaviour, is the predominant element of the work. However, it would appear that attempting to resolve health and safety issues, where “intentionality” is the dominant characteristic of the issue to be resolved, by utilizing the concept of “danger” as defined in the Code might prove to be a challenge. [199] My decision in this case is that “danger” as defined in the Code did not exist at the time of the health and safety officer’s investigation for park wardens carrying out law enforcement duties. Consequently, I must rescind the directions. [200] For all these reasons, I rescind both directions (Appendix 1 and 2) issued by health and safety officer Robert G. Grundie under paragraphs 145(2)(a) and (b) of the Code on February 1, 2001 to Parks Canada Agency. These directions were given to Mr. Bill Fisher, Field Unit Superintendent and to Mr.Tom Lee, Chief Executive Officer as representatives of Parks Canada Agency.
______Serge Cadieux Appeals Officer
51 APPENDIX 1
IN THE MATTER OF THE CANADA LABOUR CODE PART II - OCCUPATIONAL HEALTH AND SAFETY
DIRECTION TO THE EMPLOYER UNDER PARAGRAPHS 145(2)(a) AND (b) On January 31, 2001, the undersigned Health and Safety Officer concluded an investigation of a complaint made by Doug Martin, an employee of Parks Canada Agency in Banff National Park, being an employer subject to the Canada Labour Code. The said Health and Safety Officer considers that the following activity constitutes a danger to the employees of Banff National Park while at work: Wardens in that Park who are expected to engage in law enforcement activities such as patrols, intelligence gathering, investigations of possible offences, and arrests, for resource management purposes and the maintenance of the public peace, activities in the performance of which they may find themselves at risk of grievous bodily harm or death, are not provided with the necessary personal protective equipment. In like circumstances, officials carrying out similar duties such as federal Fisheries Officers, Environment Canada Wildlife Enforcement Officers and provincial conservation officers, are authorized to carry sidearms. Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take measures within 6 months to (a) correct the hazard or condition or alter the law enforcement activity of the wardens, or (b) protect the wardens from the danger. You are HEREBY FURTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, to discontinue the activity that constitutes a danger until you have complied with the direction issued in the previous paragraph. Issued at Calgary, this 1st day of February, 2001.
Robert G. Grundie Health and Safety Officer #AB6041 To: Parks Canada Agency Banff National Park Field Unit P.O. Box 900 Banff, Alberta, T0L 0C0 Attention: Bill Fisher, Field Unit Superintendent
52 APPENDIX 2
IN THE MATTER OF THE CANADA LABOUR CODE PART II - OCCUPATIONAL HEALTH AND SAFETY
DIRECTION TO THE EMPLOYER UNDER PARAGRAPHS 145(2)(a) AND (b) On January 31, 2001, the undersigned Health and Safety Officer concluded an investigation of a complaint made by Doug Martin, an employee of Parks Canada Agency in Banff National Park, being an employer subject to the Canada Labour Code. The said Health and Safety Officer considers that the following activity constitutes a danger to employees while at work: Wardens who are expected to engage in law enforcement activities such as patrols, intelligence gathering, investigations of possible offences, and arrests, for resource management purposes and the maintenance of the public peace, activities in the performance of which they may find themselves at risk of grievous bodily harm or death, are not provided with the necessary personal protective equipment. In like circumstances, officials carrying out similar duties such as federal Fisheries Officers, Environment Canada Wildlife Enforcement Officers and provincial conservation officers, are authorized to carry sidearms. Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to take measures within 6 months to (a) correct the hazard or condition or alter the law enforcement activity of the wardens, or (b) protect the wardens from the danger. You are HEREBY FURTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, to discontinue the activity that constitutes a danger until you have complied with the direction issued in the previous paragraph. Issued at Calgary, this 1st day of February, 2001.
Robert G. Grundie Health and Safety Officer , #AB6041 To: Parks Canada Agency 25 Eddy Street Hull, Quebec K1A 0M5 Attention: Tom Lee, Chief Executive Officer
53
Canada Appeals Office on Bureau d’appel canadien en Occupational Health and Safety santé et sécurité au travail ______
SUMMARY OF APPEALS OFFICER’S DECISION
Decision No.: 02-009
Applicants: Parks Canada Agency Mr. Doug Martin Public Service Alliance Canada
Health and Safety Officer: Mr. Bob Grundie
Before: Serge Cadieux Appeals officer
Key Words: Risk, danger, unpredictability of human behaviour, intentionality, sidearm, law enforcement, activity, duties, grievous bodily harm, death, serious injury, national investigation, national direction, officer safety analysis, violence prevention program, IMIM, CAPRA, RCMP, peace officer, resource management, studies, assessments, body armour, levels of service, industry standard, standard of care, poaching, judgement, objective criteria, assault, historical evidence, first responder, one-up principle, repositioning, lethal force, inherent risk, image, drug pipeline, vehicle stop, criminal record, spontaneous attack.
Provisions: Canada Labour Code: 124, 145(1), 145(2) (a) and (b)
Summary: On February 1, 2001, health and safety officer Bob Grundie issued two directions for danger to Parks Canada Agency (Parks Canada) as a result of a complaint made by Mr. Doug Martin. Mr. Martin is a park warden that carries out law enforcement duties in Banff National Park, one of Canada’s many national parks. He felt that he was at risk of being injured because he is not provided with essential protective equipment to carry out his job safely i.e. a sidearm. The health and safety officer investigated the complaint of Mr. Martin and expanded
Canada Appeals Office on Bureau d’appel canadien en Occupational Health and Safety santé et sécurité au travail ______his investigation of Mr. Martin’s complaint into a national investigation. The health and safety officer spoke to a number of people having expertise in this area, collected numerous documents and concluded that the policy of Parks Canada placed park wardens carrying out law enforcement duties in “danger” as defined in the Code. Counsel for the employer submitted that the measures taken by Parks Canada to date have proven to be effective in reducing the risk of injury to the minimum. A sidearm, which should only be used in self-defense to deliver lethal force, is not necessary for park wardens to carry out their law enforcement duties. The historical evidence has shown that park wardens have not been seriously injured or killed in the line of duty to date. Expert witnesses have testified that park wardens have at their disposal other means to deal effectively and safely with offenders. The possibility that injury might occur is a risk that is inherent in the job of a park warden carrying out law enforcement duties. It is however a risk that does not constitute a “danger” as defined in the Code. Counsel for the employees submitted that park wardens engaged in law enforcement duties are likely to encounter situations where lethal force will have to be delivered. The tool of choice to do this is a sidearm that he and the health and safety officer consider being essential personal protective equipment. The witnesses for the employees testified that park wardens encounter individuals that have criminal records, are unpredictable and, in many cases, are prone to violence. The employees' case is founded on the unpredictability of human behaviour. On this basis, park wardens engaged in law enforcement activities are in a situation of “danger” as defined in the Code since injury might occur at any time and every time they do law enforcement. On appeal, the appeals officer (also referred to as the tribunal) found that this case fails on the absence of facts because the health and safety officer did not carry out a factual investigation. The health and safety officer essentially carried out an analysis of the employer’s policy with respect to the issuance of sidearms. On this basis alone, the health and safety officer declared that park wardens carrying out law enforcement duties were in “danger” as defined in the Code. The tribunal agrees that this case rests on the distinction between risk and “danger” as defined in the Code. This case was based solely, in the opinion of the tribunal, on the unpredictability of human behaviour. This latter concept is a concept which is not in harmony with the concept of “danger” as defined in the Code since it is practically impossible to establish when an offender would assault a park warden with the intent of inflicting grievous bodily harm or death. The tribunal noted that while there was no “danger” as defined in the Code, the employer had not carried out an objective “officer safety analysis” that could have put to rest this issue. Objectivity, said the tribunal, could probably only be achieved with the involvement of a health and safety officer given the entrenched policy of the employer with respect to the issuance of sidearms. The tribunal rescinded both directions to Parks Canada but noted, in obiter, that the status quo was not acceptable.