Border officers working at airport face risks that aren’t covered by regular training and PPE
A health and safety tribunal has upheld two orders against the Canada Border Services Agency (CBSA) to implement better training and provide protection against spitting for its border services officers when dealing with detainees in small spaces such as holding cells.
Brian Donohue and Robert Burke were border services officers for the CBSA at Toronto Pearson International Airport’s Terminal 3.
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 officers present had to use force to fingerprint the first woman, and she was taken to the immigration 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 superintendent told Donohue that he would be one of the officers supervising 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 dangerous 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 techniques 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 Donohue’s reasons for his work refusal, he also exercised his right to refuse dangerous work on the same grounds. A few hours later, the second traveller became more co-operative and authorities 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 refusals 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 incident management model. In addition, the CBSA had an understanding with the local police service where border services officers could request police assistance 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 accommodate 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 prisoners. The HSO also found Donohue’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 identify and assess a hazard the officer 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 individual.
The CBSA appealed the directions made against it by the HSO to the Canada Occupational Health and Safety Tribunal, arguing 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 “potential harm (border services officers) faced entering a holding cell, which is a relatively small, cramped area” and the main issue was the possibility of harm to Donohue and Burke when they had to deal with a potentially violent person in the holding cell.
Specific hazard analysis lacking
The tribunal also noted that a 2003 job hazard analysis for customs inspectors and superintendents 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 procedures for arrest and detention as well as care and control of persons in custody.
The tribunal found that the control and defensive tactics training that border services officers 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 officers to deal with risk from someone 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 following 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 becoming ill from being spit upon by the second traveller was “extremely 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 something – 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 services 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 result, the tribunal determined the HSO’s second direction to provide 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 obligation under the HSO’s direction.
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