Eric M. Roher

Partner

Tel: 416.367.6004

E-mail: eroher@blg.com

THE LEGAL INS AND OUTS OF SECURITY IN SCHOOLS

Canadian Security

March 25, 2015

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“The fuel light’s on, Frank! We’re all going to die!. . . We’re all going to die!. . .Wait, wait. . .Oh, my

mistake – that’s the intercom light.”

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The Impetus

♦ April 20, 1999 – Columbine High School (Littleton, Colorado) attack

♦ April 28, 1999 – W.R. Myers High School (Taber, Alberta) shooting

♦ June 16, 2000 – Tobermory Tour Boat Incident

♦ Spring 2003 – SARS Outbreak

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The Impetus - continued

♦ September 13, 2006 – Dawson College Shooting

♦ April 16, 2007 – Virginia Tech Shooting

♦ May 23, 2007 – Shooting of Jordan Manners, 15, at C.W. Jeffery’s Collegiate Institute, Toronto

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The Impetus - continued

♦ December 14, 2012 - Adam Lanza, 20, killed 20 children and six others at Sandy Hook Elementary School, Newtown, Conn.

♦ September 23, 2014 – Stabbing of Hamid Aminzada, 19, at North Albion Collegiate, trying to break up a fight.

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Virginia Tech Shooting – April 16, 2007

• In 1992, Seung-Hui Cho’s family emigrated to America.

• In high school, Cho was unresponsive in class and unwilling to speak.

• September 2005, Cho entered Virginia Tech.

• Girls made two complaints to police; they found him bothersome, not threatening.

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Virginia Tech Shooting - continued

• Counsellor recommended involuntary commitment.

• Doctor declared him mentally ill but not an imminent threat.

• In class, some students thought Cho was unable to hear and speak.

• He sometimes introduced himself as “Question Mark”, persona of a man who lived on Mars.

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Virginia Tech Shooting - continued

• Cho purchased a Walther .22-caliber pistol from an Internet gun site. Picked it up at a pawnshop on February 9, 2007.

• March 12, 2007, Cho rented a van. Kept vehicle for almost a month.

• March 13, 2007, Cho bought a 9 mm Glock pistol. He took 50 rounds of ammunition.

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Virginia Tech Shooting - continued

• Cho went shopping between March 31st and April 13th to purchase cargo pants, ammunition, hunting knife, gloves and chains.

• Spent thousands of dollars preparing for the attack, charged to a credit card.

• Cho cropped his hair to a military buzz cut.

• He worked out with frenzy at the gym.

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Virginia Tech Shooting - continued

April 16, 2007

• Shortly after 7:00 a.m. Cho shot Emily Hilscher, a freshman, and Ryan Clark, a dorm resident adviser.

• There was no connection between Cho and Hilscher.

• Cho returned to his dorm room.

• He assembled a package – videos of himself, 43 photographs and a 1,800 word statement.

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Virginia Tech Shooting - continued

• Cho took his package to a small post office a few blocks from campus, waited in line and sent it by overnight mail to NBC in New York. It was stamped 9:01 a.m.

• At 9:30 a.m. Cho entered Norris Hall carrying a backpack with guns, chains and knives.

• He wrapped the chains around the interior handles of the doors.

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Virginia Tech Shooting - continued

• Within 15 minutes, he fired more than 175 rounds in killing 30 people in four classrooms.

• Police officers blasted open the door with a shotgun.

• Police found Cho’s body in a stairwell.

• He had shot himself.

• Police shouted: “Shooter down! Black Tag!”

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Virginia Tech Shooting - continued

• Pastor at the Korean Church in Centreville watched the tapes on television.

• He told a Seoul newspaper:

“All my family said that was not the Sueng-Hui we knew. It was the first time we saw him speaking in full sentences.”

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Emergency

♦ A situation that can be handled by the established response system of the police or fire department through normal procedures.

♦ Examples include a chemical spill or bomb scare.

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Crisis

♦ An abnormal situation with a potential to have serious impact on institutional operations.

♦ Examples include an extended power outage or major storm.

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Disaster

♦ An event causing significant loss, hardship and/or suffering to many people.

♦ Frequently overwhelm emergency response resources and personnel.

♦ Recovery process is long and complex.

♦ Examples include bomb explosion and large scale flood.

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Legal Principles

• Negligence.

• Duty of care, breach, causation, remoteness, damages.

• Protect students from reasonably foreseeable risks of injury.

• Legal principles inform emergency preparedness and response strategies.

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Burden of Proof

Burden of proof is on the plaintiff to show, on the balance of probabilities, that the defendant did not meet the standard of care of a reasonable person in given circumstances.

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Elements of Negligence

• Defendant owed a duty of care to the plaintiff.

• Defendant breached the duty of care.

• Defendant’s breach was cause of plaintiff’s injury.

• Plaintiff suffered actual damage or loss as a result of the injury.

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Foreseeability

• Key in determination of whether a school had legal responsibility to take action.

• Not only what a school knew, but also what it ought to have known.

• School took reasonable steps to reduce risk of injury/accident.

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School Board

♦ Vicariously liable for all acts of negligence undertaken by its employees and volunteers.

♦ Liability flows from the teacher to the principal to the school board.

♦ Insurance coverage for acts within scope of employment.

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Standard of Care in Schools

♦ Reasonably prudent or careful parent in the circumstances.

♦ School authorities act in loco parentis.

♦ Protect their students from reasonably foreseeable risk of harm.

♦ Duty of care to students on or off school premises.

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Ontario Education Act

♦ Duty of Principal:

To maintain proper order and discipline in the school.

To give assiduous attention to the health and comfort of pupils under their care.

Provide for the supervision of pupils during the school day.

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Ontario Education Act - continued

♦ Duty of Teacher:

To maintain, under the direction of the Principal, proper order and discipline in the classroom.

On duty in the school.

On the school grounds.

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Ontario Education Act - continued

♦ Duty of School Board:

Keep school buildings and premises in proper repair and in proper sanitary conditions.

Provide suitable furniture and equipment and keep it in proper repair.

Protect the property of the Board.

Make provision for adequate insurance.

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Occupational Health and Safety Act

• The OHSA came into force in 1979.

• Designed to set administrative, legal procedural standards for health and safety in Ontario’s workplaces.

• Achieves these ends through an “internal responsibility system.”

• Places responsibility for health and safety on the stakeholders by creating duties for employers, supervisors and workers.

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Under the OHSA, an employer shall:

• Provide information, instruction and supervision to a worker to protect the health and safety of the worker.

• When appointing a supervisor, appoint a competent person.

• Take every precaution reasonable in the circumstances for the protection of a worker.

• Prepare and review at least annually a written OHSA policy.

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Bill 168 – Amendments to the OHSA (June 15, 2010)

♦ Requires employers to take active measures to prevent workplace violence.

♦ Requires workplace violence and harassment policies and programs to implement those policies.

♦ Requires employers to assess the risk of workplace violence that arise from the nature of the workplace.

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What is Workplace Violence?

♦ The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;

♦ An attempt to exercise physical force against a worker, that could cause physical injury to the worker; or

♦ A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker.

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Obligations to Share Information

♦ Employers must provide workers with information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour.

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This Duty Applies when:

♦ The worker can be expected to encounter the violent person in the course of his or her work; and

♦ The risk of workplace violence is likely to expose the worker to physical injury.

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Limitation on Disclosure

♦ Employers must not disclose more information than is reasonably necessary for the protection of a worker from physical injury.

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Domestic Violence

♦ An employer must take every precaution reasonable in the circumstances for the protection of workers when they are aware, or ought reasonably to be aware, that domestic violence may occur in the workplace and that it would likely expose a worker to physical injury.

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Employer Awareness

♦ When an incident takes place at the workplace;

♦ Concern is reported by a targeted worker or co-worker;

♦ Threatening e-mails;

♦ Harassing phone calls; or

♦ Unwelcome visits at work.

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Employer’s Responsibility

♦ The employer should work closely with the targeted worker to develop reasonable precautions to address the situation while attempting to respect the worker’s privacy and sensitivity of the issue.

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Penalties

• Ministry of Labour is responsible for carrying out prosecutions under the OHSA.

• Conviction may lead to a fine of up to $25,000 or imprisonment of up to 12 months, or both.

• Where corporation is convicted of an offence, the maximum fine is increased to $500,000.

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Right to Refuse Unsafe Work

• OHSA permits workers to refuse work they believe is unsafe in appropriate circumstances.

• Act requires the worker to immediately report the circumstances to their supervisor and employer who will conduct the investigation.

• If, after the inspection, worker still refuses to perform work, an inspector from the Ministry must be summoned to carry out second inspection.

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Right to Refuse Unsafe Work

• Law protects employees who engage in legitimate refusals.

• Employer may not discipline an employee who has engaged in a legitimate refusal.

• However, if employee does not have proper grounds for a work refusal, employer may be justified in taking disciplinary action.

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Dawson College Shooting – September 13, 2006

• Dawson College is the largest CEGEP in Quebec with 10,000 students.

• Kim Veer Gill was a 25-year-old student who had dropped out of high school.

• 10:41 a.m. Gill posted his last entry on the website vampirefreaks.com, mentioning how good whiskey tastes in the morning.

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Dawson College Shooting - continued

• He packed an arsenal of 3 weapons - a 9 mm Beretta semi-automatic rifle, a block .45 caliber pistol and a 12 gauge shotgun.

• All the guns were legally registered in Mr. Gill’s name.

• 12:30 pm. Gill drove his Pontiac Sunfire from his parents home and parked it outside a daycare centre.

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Dawson College Shooting - continued

• He calmly removed the weapons from the trunk.

• Carrying a rifle Gill walked to the main entrance of Dawson College.

• He shot several people who were on the sidewalk, then proceeded inside.

• Inside the College, Gill shot at random.

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Dawson College Shooting - continued

• He singled out Anastasia De Sousa, an 18-year-old student, who was shot at point blank range.

• 12:41 p.m. The first of 400 calls came in to 911.

• 12:44 p.m. Two young police officers followed Gill into the building.

• Gill took at least two hostages and used them as human shields.

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Dawson College Shooting - continued

• In an exchange of gunfire with police, Gill was hit in the arm.

• 1:10 p.m. Gill shot himself in the College atrium.

• Hours of chaos followed as police scoured the building, looking for possible accomplices and evacuating Dawson students.

• Nine victims were taken to hospital, including four in critical care.

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Lessons Learned

Challenges of Dawson’s physical space

• 91,000 square metres

• 29 exits

• Building is located on a city block

• Rises five storeys on Sherbrooke Street.

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Lessons Learned

• Police operations at the beginning focused on a terrorist attack.

• The cell phone network was compromised.

• Reports of other shooters – Gill took escalator up and down floors.

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Lessons Learned

• Need for a lockdown plan.

• All employees and students must be aware of emergency procedures.

• Review accessibility to the College.

• Review of security needs, number of guards increased.

• New public address system and improved cell phone network.

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Rogers Pass Avalanche – February 1, 2003

♦ Grade 10 class from Strathcona-Tweedsmuir School went on a backcountry ski trip.

♦ Part of the school’s curriculum.

♦ Weather report for February 1, 2003 indicated that avalanche danger below the tree line was “modest”.

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Rogers Pass Avalanche - continued

♦ Avalanche threat was “considerable”.

♦ Report said that “natural triggers are probable.”

♦ Two weeks prior, another avalanche only 40 kilometres away had killed 7 tourists.

♦ Rogers Pass is one of the most unstable areas in Western Canada.

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The Students were well prepared

♦ Before the trip, they had completed fitness tests and lessons on avalanche awareness.

♦ During the ascent the students travelled in pairs.

♦ They followed the standard practice of keeping 30 to 50 feet between pairs.

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Safety measures were taken

♦ The Guides were certified and had backcountry experience.

♦ Guides stopped the students during the trip and quizzed them on avalanche safety.

♦ Each student had a shovel, probe and avalanche beacon.

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At 11:45 a.m.

♦ Something caused the snow above the tree line to crack and slide down the mountain.

♦ The snow swept into the students and their guides, carrying some more than 200 yards.

♦ 40 rescuers made their way to the scene.

♦ Tragically, seven students died.

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Consultant’s Report – June 23, 2003

♦ School should reassess tolerance for risk.

♦ Board of the school should provide program staff with direction on the school’s tolerance for risk.

♦ Do not leave it to individual staff members to determine tolerance for risk.

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Consultant’s Report – June 23, 2003

♦ The school should implement a disclosure policy that enables parents to assess levels of risk on each trip.

♦ The school should review its process of communicating outdoor education information to parents.

♦ The school should review its outdoor education course outlines and trip packages.

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Consultant’s Report – June 23, 2003

♦ Ensure parents receive adequate and accurate information about field trips and the level of risk.

♦ Draft consent forms in a way that motivates parents to read and understand its content.

♦ Develop receiving and tracking mechanisms to ensure that consent forms are collected and accounted for before field trips.

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Consultant’s Report – June 23, 2003

♦ Review field trip leader qualification requirements (for full-time staff, assistant leaders and volunteer leaders).

♦ School should implement a consistent field trip planning process that involves documentation.

♦ If the school wishes to continue with avalanche education, it should find a safe venue and method for doing so.

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Risk Management

♦ Risk management is the process of planning, organizing and controlling activities that contain an element of risk of injury to the participant.

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Risk Management involves the following steps:

♦ Identify and assess exposures to injury.

♦ Identify various risk management strategies to address these exposures.

♦ Select and implement the appropriate strategy or strategies.

♦ Monitor results and make improvements where necessary.

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Risk Identification – School Level

♦ What are the risks inherent in the activity?

♦ How much supervision is required?

♦ Does the facility have liability insurance?

♦ Is the activity age appropriate?

♦ What is your emergency plan?

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Communication with Parents

• Parents should receive adequate information about

the activity to enable them to assess the level of risk

to their child.

• Informed consent forms should outline not only

information about the activity, but should also

include the risks involved.

• Schools should have a clear and precise policy

regarding how to notify parents of an emergency

situation in a timely manner.

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Select and implement an appropriate strategy

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7 Steps for Developing an Emergency Plan

1. Elicit the support and commitment of the Board of Trustees and School Board administrators;

2. Form a team composed of stakeholders who represent key sections of the school community.

3. Perform an emergency audit and risk assessment.

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7 Steps for Developing an Emergency Plan

4. Develop an emergency plan and procedures.

5. Conduct training on the plan with school staff, students and parents.

6. Facilitate a debriefing and discussion after each incident.

7. Evaluate and review emergency plan on a regular basis.

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Emergency Plan

Ideally, an Emergency Plan should include the following components and information:

• Identification of key emergency response team members.

• Evacuation location(s).

• First aid/emergency kit location(s).

• Location of media staging area.

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Emergency Plan

• School map and floor plan.

• Who should the family members contact?

• How should special needs students be dealt with?

• Who is in charge?

• Should the media be contacted? By whom?

• Emergency telephone directory.

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Communication of the Emergency Plan

• The Emergency Plan should be communicated broadly to all stakeholders.

• As with all school practices, the Emergency Plan should be reviewed, rehearsed, and revised regularly.

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Loss Prevention

• The school should have annual in-service training for teachers and other staff with respect to emergency and response plans and procedures.

• Reviewing all previous incidents of injury.

• Discuss how the incident was handled by school administrators.

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Loss Prevention

• Continually re-evaluating existing safety procedures.

• Following Board guidelines which specify appropriate standards of care and supervision of students.

• Keeping abreast of what other school boards are doing.

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Conclusion

To create major changes in the workplace, the organization needs:

• a sense of urgency;

• a guiding coalition; and

• vision and strategy.

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What we need to strive for

♦ Commitment and allocation of staff and resources by school administration to make emergency response planning a priority.

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“Somebody has to do something,

and it’s just incredibly pathetic that

it has to be us.”

Jerry Garcia

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“Look, I’m not saying it’s going to be today. But someday – someday – you guys will be happy that

you’ve taken along a lawyer.”

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THANK YOU!

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