Prime Time Crime
Sept. 1, 2004
Constructing a Healthy Police Workplace
BY Dean Nichol
Canada is quickly becoming a world leader in the enactment of Federal legislation that protects the “right” of an employee to a positive, respectful, safe and healthy workplace. In November of last year, Bill C-45 received Royal Assent in the House of Commons, which codifies the legal responsibility of all employers to take all reasonable steps to remove unsafe working conditions within their work environment- lest the employer face criminal prosecution.
For the last decade, we have also seen the emergence of statutes, case law and judgments that are designed to ensure that an employee is provided with a workplace that is free of harassment, discrimination, threats, intimidation, unfair practices and other forms of “disrespectful” treatment. Again, a responsibility is placed upon the employer to take all reasonable steps to abide by respectful workplace guidelines and ensure that the employee does the same.
How does this affect the police profession? Is policing so inherently different from the 9-to-5 norm, that the general legal guidelines governing the civilian employer/employee populace do not necessarily apply to a para-military organization? Could it be argued that, since policing is inherently dangerous as a profession anyway, and that a certain amount of disciplinary control is asserted in order to maintain law and order in traditional society, that legislation such as Bill C-45 may not necessarily apply to a law enforcement workplace (or firefighting, for that matter)?
As the world of policing procedure adapts and changes with society, so too has there been a series of changes within the realm of the relationship between the modern day police warrior and his agency. Police services have been required to examine strategies for dealing with labour/management conflicts, address internal workplace conflicts and complicated matters of grievance; plus, the service faces testing from member-initiated lawsuits and human rights complaints as well. In addition, there are so many provincial jurisdictional legal mechanisms in place that have an ability to deal with many of the above issues, that there can be much uncertainty as to which venue applies to each individual case. Even the most astute lawyer will eventually get “Excedrin headache number 10” from the myriad of problems that can occur within a police organization; particularly if a workplace health and safety or “rights” issue isn’t handled properly.
In order to examine the potential effects of workplace legislation mentioned, the severity and degree of the criminal and civil ramifications must be examined under each type, and where they would apply. First, let’s examine “potential” instances where Bill C-45 might have an effect on the police workplace.
Bill C-45 makes amendments to sections 22.1, 22.2, 22.3 and 217 of the Criminal Code, which govern intent/counseling a criminal offence and doing/omitting to do an act where a foreseeable consequence could be death or bodily harm. The amendments help to define who is accountable within an organization (which the bill prescribes as applying to “all organizations”). In a nutshell, according to a Legislative summary from the Parliamentary library, “For negligence-based crimes, the mental element of the offence will be attributable to corporations and OTHER ORGANIZATIONS through the aggregate fault of the organization’s ‘senior officers’ (which will include those members of management with operational, as well as policy-making authority)” {Goetz, David; Law and Government Division, 03 July, 2003}. What this means to a law enforcement agency is that, being as they can fall into the area known as “other organizations”, that it is conceivable that anyone within the agency who has “senior officer” status or is in a position of operational control (or policy making authority) could be chargeable under the provisions of the bill, for any condition within the police workplace that could be deemed as being an unreasonable hazard or showing a reckless disregard for lives/safety of others within the organization.
Hypothetically, let’s look at a scenario where this might occur. A police officer is assigned to work a series of night shifts, approximately 10-12 hours in length consecutively, for several days. In between some of these shifts, the officer has to attend court in the morning hours following one of them. The officer is tired, yet compelled to answer his subpoena and drives to the courthouse a few hours after his night shift ends. The officer, having been in court part of the day, reports to night shift the following night, not being allowed by a supervisor to take either part or the whole night off in spite of daytime mandatory commitments. Therefore, the officer gets minimal sleep in between his shifts. During the shift, the officer causes a motor vehicle accident and injures himself, as well as a member of the public. Or, the officer cannot react to a potential threat fast enough due to his motor skills being impaired by lack of sleep. The officer subsequently gets injured or killed.
Although a court would have the final call, these are scenarios which can easily occur and potentially cause someone in charge to be prosecuted. Right now, there are no cases from a law enforcement agency to speak of before the courts facing charges under C-45, but, given certain aspects of a police officer’s job and certain established practices, like the one mentioned, there is an articulable risk associated that could be deemed unreasonable under a totality of circumstances. Other hypothetical examples could include situations where a lack of staffing results in someone getting hurt due to having no “back up” at certain high risk calls. Most Police Acts and regulations in provinces require a Chief Constable or an agency to provide adequate policing services for a given geographical area or population base. If a police service willingly or knowingly does not provide an “adequate” number of officers on the street or in an area, and it can be proven that sufficient warning signs were apparent of this, could it be conceivable that the upper echelon of a service might find itself facing charges under the new Act?
Again, a court will have to determine all mitigating factors, but it does give one pause for thought. It also encourages police organizations to be very careful when developing policy on subjects such as shift scheduling, equipment and it’s use, training in skills (particularly weapons use, defensive tactics, etc), deployment of personnel, call response procedures, etc. Basically, in this day in age, anything and everything is on the table and open to examination by the courts. The accountability process appears to be shifting towards a greater level of legal accountability on the part of those who are entrusted with organizational leadership roles. Penalties under the bill range from fines, to probation, and perhaps imprisonment in the absolute worse cases.
Next, there is legislation that deals with other aspects of the healthy workplace concept. All provinces in Canada adhere to provincial Human Rights codes (which derive their guiding principles and legal context from the federal Human Rights Act). Provincial codes dictate that every employee in every workplace has a right to work in a “respectful” workplace. What does the term “respectful workplace” mean? And, how does this equate to the realm of the police working environment, where a police officer is exposed to criminals, mentally disturbed persons, and those who will invariably be disrespectful, aggressive, violent and vulgar towards authority? Is there anything that can be done internally to make the profession healthier, respectful, maximally positive and/or non-abusive?
As previously mentioned, the police agency is elementally a para-military organization. This means that the organization has a chain-of-command that gives orders (and is responsible for making sure orders are carried out), has a uniform code of discipline, drill, dress and deportment. In addition, the organizational structure is such that dialogue on whether something should/should not be done is limited and a “commander” designated ends up having a final say in decision making processes. In addition, because police are generally armed with weaponry and are given authority to force people to do certain things, a certain army-like structure is developed in order to ensure that a police service has the ability to carry out its mandate(s) of law/order; and is different from just another organized mob with guns.
In such an organization, there is generally a high standard for conduct and behavior of its members. Pride, honour and self-discipline are essential attributes in order to succeed in such an organization. However, police services can tend to be a microcosm of society, as well. Given that, there could be an occasional hiccup in terms of how police officers and other employees are treated internally. Again, the police service could be held to account under provincial and federal legislation when it can be found that an officer is discriminated against under the normal prohibited grounds (i.e. race, religious belief/affiliation, marital status, disability, etc.). However, there are also provisions that govern misuse or abuse of authority, or behavior that is so oppressive so as to constitute harassment – and thus deprive the officer of a respectful workplace. A workplace that is non-respectful and/or negative, increases the amount of stress within the working environment, damages morale, creates serious health risks and may create excessive human resources turnover. Despite having a para-military structure, it is still legally incumbent on those in charge to provide, as much as is reasonably possible, a healthy internal working environment.
According to Health Canada, there are several “key factors” that make or break a healthy working environment:
- A physically well designed, safe, physical work environment. This may be difficult to provide in the law enforcement realm as the profession may require a police officer to go into harm’s way. However, the employer can provide clean/healthy buildings to work in, proper equipment and uniforms, reliable vehicles and sufficient recovery time from shifts and during shifts for rest.
- An organizational “culture” that promotes and supports the well being of the officer. Again, it is incumbent on the police employer to minimize negativity within the service that can be a detriment to a member’s well being.
- Personal resources for support, and having resources in place for coping with factors affecting health, stress, etc. In today’s society, there is much that the employer can do in terms of employee support programs, access to certain health services and support for the employee. In fact, in certain circumstances, there may even be a duty to provide help and assistance when it is requested.
- Personal health practices that promote health and wellness. This part is generally incumbent on the employee (i.e. physical fitness programs, hygiene, diet, exercise, etc).
In recent years, courts have placed a great deal more accountability on the management of organizations to adhere to certain practices that make or break the healthy/respectful workplace. An example of a breakdown of this system was outlined in a report made by Justice Ted Hughes in December of 1996, regarding the massive prison riot at Headingley Correctional Institution outside of Winnipeg, Manitoba.
In short, the riot occurred in April of 1996 when a cell block search led to an ambush on Correctional Officers. In the minutes that followed, the officers in the basement of the institution were overrun and 2 were seriously injured. The prisoners gained control of keys, drugs and eventually, the institution itself. Aside from the criticism of safety measures, equipment, facility engineering and training of staff, one of the issues that arose was that Headingley Jail, as described in the report, was a “poisoned workplace.” Hughes cited as a major factor leading to the incident (where officers and inmates alike were beaten, maimed, scarred and traumatized for life) the fact that there was the “everyday hatred, apathy, negativism and couldn’t-care-less attitude” among staff and management of the facility. Hughes further explained that there was a failure at all levels within the institution (particularly management) to address labour issues, officer safety concerns and respectful workplace issues. Later, the provincial government of Manitoba ended up with a lawsuit from inmates, a heavy turnover rate amongst staff in the institution, an ugly arbitration process (over a subsequent forced movement of specific ‘workplace agitators’ out of the institution to other government jobs), and increased workers compensation premiums resulting from injuries, disabilities and psychological trauma to staff resultant to the riot and day-to-day working conditions; which ought to have been addressed a long time beforehand.
As a result, the Manitoba provincial government mandated training and education for justice personnel and recruits in healthy/respectful workplace doctrine. They also placed more emphasis in creating legislation and policies that protect both employee and employer rights in this regard.
There are probably other examples in existence in Canada that outline how “unhealthy” a workplace can become. Although Headingley Jail is perhaps an example of the worst case scenario, it provides a good case study as to how a workplace can break down and become unviable. In law enforcement, because of job that has to be performed day-in/day-out, and the risks associated, there is perhaps no other environment where health, welfare, respect, safety and morale are so internally crucial to the success and viability of the organization. Internal success in these areas are necessary for the outward success in terms of fighting crime effectively, as, in the words of a time-honoured proverb, a house that is divided amongst itself cannot stand.
The issues that the police officer has to deal with on the street are negative enough sometimes. To have to deal with negativity within the organization puts an even greater burden on the officer. In today’s society, police officers at all levels cannot be taken for granted, and cannot be subjected to internal conditions which keep them from carrying out their very vital role and function. Therefore, establishing a healthier workplace is essential in order to avoid staff turnovers, sickness, accidents, court actions and a variety of other consequences of workplace failure.
To construct a healthier internal working environment for all police personnel, there will have to be progressive, forward thinking people at the helm, as well as an attitude of creativity and “thinking outside the box.” Organizations that place value on their personnel will no doubt be able to aptly study the legislation pertaining to the police workplace and put into practice the principles of creating a professional police organization, by looking after the occupational needs of its people.
Sources:
1. McKeown, Geri ; “The CEO Refresher”, Workplace Wellness: Something’s Happening Here
2. Goetz, David; Legislative Summaries. “Bill C-45: An Act To Amend The Criminal Code.”
03 July, 2003.
3. Canadian News Digest, August, December 1996, 2004 Canoe.
4. Hughes Report,( Inquiry Into The Headingley Riot), 1996.