Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | September 2017 | News On Oct. 18, 2012, two female travellers arrived on a flight from Hong Kong and were detained at the immigration area for further questioning and examination. It was decided to fingerprint the two women, but they refused and became difficult to deal with. The border services offi- cers present had to use force to fingerprint the first woman, and she was taken to the immigra- tion holding centre. Donohue was on duty at the holding centre and was asked to watch the first traveller while the second was fingerprinted. However, the second traveller became violent and they were unable to fingerprint her, so she was put in a holding cell in the customs detention area. The immigration superin- tendent told Donohue that he would be one of the officers su- pervising the second traveller while she was in the holding cell, but Donohue informed Burke – the occupational health and safety committee representative – that he was initiating a work refusal on the grounds of dan- gerous work. Donohue said the second traveller posed a risk to him if he became violent as he wasn't trained on cell detention techniques, cell extraction tech- niques or restraining tools, and the holding cell wasn't meant for overnight stays. He was also concerned about the traveller spitting on him and the risk of infection since he didn't have any personal protective equipment (PPE) to guard against it. When Burke learned of Dono- hue's reasons for his work refus- al, he also exercised his right to refuse dangerous work on the same grounds. A few hours lat- er, the second traveller became more co-operative and authori- ties were able to fingerprint her before sending her to a detention centre. More training and protection ordered for officers A health and safety officer (HSO) from Employment and Social Development Canada (ESDA) investigated the two work refus- als the next day. The HSO found that border service officers were equipped with pepper spray, a baton, handcuffs, protective vests, and steel-toed boots, and they also were trained in control and defensive tactics and an in- cident management model. In addition, the CBSA had an un- derstanding with the local police service where border services officers could request police as- sistance with violent individuals. The HSO also discovered that both travellers had calmed down after they were separated and a cell extraction wasn't necessary. Regardless, the holding cells in the customs detention area were equipped with toilets and a place to lie down, so they could ac- commodate an overnight stay. The HSO determined that no danger to Donohue and Burke existed, as at any time they could call police to help if they were unable to handle violent prison- ers. The HSO also found Dono- hue's concerns over PPE and training would be better handled as a health and safety complaint under the Canada Labour Code, not a work refusal. On Oct. 23, the HSO issued two directions to the CBSA: • To develop a process to iden- tify and assess a hazard the of- ficer isn't trained or equipped to deal with that an individual may pose to an officer detained in a cell, rather than relying solely on an officer's discretion to assess the hazard. • To provide necessary face and eye protection for officers against the threat or hazard presented by a spitting indi- vidual. The CBSA appealed the direc- tions made against it by the HSO to the Canada Occupational Health and Safety Tribunal, ar- guing that its existing control and defensive tactics and the police assistance options were sufficient procedure for dealing with violent individuals in cells, and there was no evidence that being spit upon was a health risk to border services officers. The tribunal noted that the HSO was focused on the "po- tential harm (border services officers) faced entering a holding cell, which is a relatively small, cramped area" and the main is- sue was the possibility of harm to Donohue and Burke when they had to deal with a potentially vi- olent person in the holding cell. Specific hazard analysis lacking The tribunal also noted that a 2003 job hazard analysis for customs inspectors and superin- tendents didn't contain anything regarding hazards associated with holding cells at the airport or anywhere else. Another job hazard analysis, specifically for border services officers in 2010, recommended the CBSA should develop standard operating pro- cedures for arrest and detention as well as care and control of per- sons in custody. The tribunal found that the control and defensive tactics training that border services of- ficers received was not the same as having a job hazard analysis for the specific circumstances in the holding cell. This training and the availability of PPE didn't change the fact that the officers weren't trained to handle that specific type of situation and instead they had to perform an "on-the-spot risk assessment," said the tribunal in agreeing with the HSO's first order to develop training for border services offi- cers to deal with risk from some- one detained in a holding cell. "In my opinion (the HSO) was correct in his determination that the facts do not demonstrate that the (CBSA) had gone through the process that is at the core of (the Canada Labour Code) such that the hazards of detainees in holding cells was assessed," the tribunal said. The CBSA developed a chart to assist border services officers in making decisions when faced with violent individuals follow- ing the HSO's direction, but the tribunal said it was up to ESDA to decide if this met its obligation under the order. The tribunal heard evidence from medical experts indicating the probability of an officer be- coming ill from being spit upon by the second traveller was "ex- tremely low. However, there was still a small chance of disease transmission and this caused "severe anxiety and stress" for employees knowing there was a possibility of contracting some- thing – and stress could cause its own health issues, said the tribunal. The tribunal also heard that protective masks were available in the workplace for border ser- vices officers, but these masks didn't cover the whole face or the eyes. Because the eyes are a mucous membrane, they are a "route of entry for pathogens into the body" and as a result should be protected. As a re- sult, the tribunal determined the HSO's second direction to pro- vide face and eye protection to protect from "threat of injury to eyes from spitting individuals" was also correct. The tribunal noted that the CBSA had purchased spit shields, but again it this was for ESDA to decide if it met the ob- ligation under the HSO's direc- tion. For more information see: Canada Border Services Agency v. Donohue, 2017 CarswellNat 3167 (Can. OH&S Trib.). Border officers < pg. 1 Training didn't address tight spaces like holding cell Credit: Shutterstock/SSSCCC

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