Municipal Corporate Security, Legal Knowledges, and the Urban Problem Space
- The authors contributed equally to the theoretical and empirical aspects of this article. The research upon which this article is based was funded by a Social Sciences and Humanities Research Council of Canada Insight Development grant. The authors thank Seantel Anaïs, Chris Hurl, Alex Luscombe, and the anonymous reviewers for their thoughtful comments.
Previous sociolegal research has neglected how the work of corporate security agents is enabled and constrained by legal knowledges. This article explores how legal knowledges shape the work of municipal corporate security (MCS) agents in Canadian cities. MCS offices are a new development in municipal governments. By drawing on analysis of freedom of information requests and interviews with MCS managers and staff, we investigate how legal knowledges shape MCS practices in Canadian cities, with a focus on trespass law, licensing law, litigation, labor law, privacy law, and workplace violence legislation that converge in MCS offices. MCS agents must interpret, translate, and apply these laws in their municipal jurisdiction or urban problem space to confront the defining element of the urban milieu—nuisance—but also to mitigate the risks. Interpretation and use of numerous laws by MCS staff constitute a distinctively urban way of governing through legal knowledge.
On the cold night of November 9, 2011 at 1 a.m., Occupy London became the first Canadian faction of this international protest movement to be excluded from public urban space. Forced to dismantle their tents and remove their possessions, the protestors in the downtown Victoria Park in this city were evicted by bylaw officers and local public police using a City Parks and Recreation bylaw against camping and nuisance. This followed a hand-delivered letter to the protestors on November 3 outlining a list of risks they were generating by occupying the park, including potential damage to the park's grass and irrigation infrastructure, risk of electrical overload and public harm, risk of fire, damage to the park's aesthetic, and risk of litigation, all of which required the city to incur security costs (City of London 2011). Enforcement of this obscure bylaw and discussion of legal liability risk created by protestors’ occupation involved several municipal departments, including London's municipal corporate security (MCS) unit, at a closed door City Council meeting two days prior (Ontario 2012). The raid marked the beginning of the end of the Occupy Movement in Canada; protests in other cities were scattered like dominos in subsequent weeks. How its removal from Victoria Park was orchestrated is illustrative of a link among legal knowledges, municipal corporate security, and urban space heretofore neglected in sociolegal studies.
In the past decade, MCS units have appeared in at least seventeen of Canada's largest cities. MCS units mimic corporate security found in private corporations. The private-sector model of corporate security is an influential precursor for MCS units. MCS units use security techniques and logics from the private sector, but their budget comes from municipal government. Although security provision was an aim of municipal government departments in earlier decades, since the early 2000s MCS units have centralized these practices. They provide security for city halls, recreational facilities (e.g., pools, parks, libraries), and other municipally owned and operated facilities. In large municipalities, the number of properties, buildings, and spaces for which MCS units provide security is in the several hundreds. Often, MCS personnel oversee video surveillance at property entrances. Each building and space undergoes a routine audit and threat assessment. MCS work also involves investigation of municipal employees, policing of “nuisance” on municipal government lands (e.g., homelessness), surveillance for public events and personnel security, coordination of physical security for municipal buildings, and legal liability reduction, as well as interpretation and enforcement of numerous laws.
Previous sociolegal research has not recognized how the practices of corporate security units are enabled and constrained by legal knowledge or knowledge of legislation and legal decisions. Valverde (2011a) argues that a potentially fruitful overlap between sociolegal studies and security studies remains undernourished. Security studies need not rely on abstract theories, Valverde suggests, but instead should generate empirical analyses of the logic of security projects, the spaces in which they operate, and the legal techniques used. We provide such an analysis with a focus on how legal knowledges shape the practices of MCS in Canadian cities, lending insight into corporate security more broadly. We use the notion of legal knowledges (Valverde, Levi, and Moore 2005) since it denotes how law operates as part of social processes while illustrating the plurality and heterogeneity of legal interpretations and applications.
Because of the location of MCS in municipal government, this article also draws on and contributes to research about urban governance and law. A key feature of federations like Canada is that their legislative powers are distributed between more than one order of government. In Canada, there are two orders: the federal and the provincial (see Hogg 2006). According to Canada's constitution, then, municipal governments are not an order of government; rather, they are creatures of the provinces (Levi and Valverde 2006). Municipal government is distinctive in Canada and elsewhere in that it still makes law of limited application (“bylaws” in commonwealth countries or ordinances in the United States) in its own jurisdiction but is also a legal subject of more than one higher order. We argue that MCS units in Canada govern through and are governed by legal knowledges. This has implications for understanding security; in particular, the way security is shaped from all angles by legal knowledge while simultaneously working as a rationality that governs how MCS officers interpret and translate law into knowledge. Moreover, all law must be interpreted by MCS through an urban security lens. For MCS, the urban is a crucial “problem space” (Collier 2009, 80) where laws are applied and security issues must be worked out. This problem space is about how to secure many sites and properties separated by urban areas that are nominally public or owned by the municipal corporation. It is also about how to govern at the municipal level. This requires a multifaceted response from a hybrid unit at the intersection of many legal knowledges stemming from legislation enacted by different levels of government and from private law.
This article is organized in four parts. We first provide a context for our study of law and MCS units by assessing literature on legal regulation of private security, Foucauldian research on legal knowledges and security, and sociolegal literature on urban governance. After a note on method, we describe MCS units and their practices as a new development in municipal governments before considering relevant legal knowledges stemming from trespass law, licensing law, litigation, labor law, privacy law, and workplace violence legislation. We argue that legal knowledges pertaining to municipal, provincial, and federal law converge in MCS units as “interlegality” (Valverde 2008) and that their interpretation, translation, and application by MCS officers constitute a distinctively urban way of governing through legal knowledge.
Law, Security, and the Urban
The penchant for investigating security practices at the federal level in North America since September 2001, coupled with ongoing overemphasis on local public police (in criminology especially), has led to neglect of a significant development: the rise of MCS units. Illustrating the distinctive forms of governance that transpire in the urban milieu, MCS units are unique in being situated between public and private realms and in how they see and organize their municipal jurisdictions. MCS units resemble other kinds of security forces, but are unique in many ways. In treating the city as a corporation, drawing from a long tradition in which municipalities are conceived as business enterprises, they resemble private security. However, MCS staff are in-house rather than contract security officers and they tend to have more expertise. In operating with considerable discretionary power, they resemble public police, but MCS officers do not carry weapons and they approach asset protection and loss prevention in a clandestine manner. As one MCS officer remarked:
Once you get into this line of work you very quickly come to realize that security and police are not necessarily the same thing. There's a lot of things that having that background will help with, but there's a lot of learning that needs to take place once you get here because there's a different way of thinking and there is a lot of things that need to be pulled in to make it all work, that gets away from the reactive … into a more proactive approach. (MCS 3, emphasis added)
Operating in the name of security gives MCS personnel much wider scope than traditional municipal bylaw officers too, and as such their work duties are not limited to enforcement of bylaws. In these ways, MCS differs from public police and private security as well as from municipal bylaw enforcement. It is precisely this “different way of thinking” that we wish to explore in relation to legal knowledges. As we demonstrate, MCS units are a site where private and public legal knowledges converge and where municipal, provincial, and federal law are applied to urban issues.
Research on municipal corporate security is scant (but see Walby and Lippert 2012; Lippert, Walby, and Steckle 2013). Most existing literature on corporate security focuses on the private sector, such as the investigation teams that corporations create to protect assets and manage theft (see Gill and Hart 1999). Our research focuses on corporate security but in municipal government. Since there is almost no scholarship on corporate security in municipal (or other) government domains, to guide our analysis we draw from literature on private security regulation as well as Foucauldian sociolegal research. Because we explore the relations between security and legal knowledge in cities, we also draw on sociolegal literature regarding law and urban governance. We address each literature in turn.
First, the literature on regulation of private security (see Button 2007; Prenzler, Sarre, and Earle 2008) provides context for our inquiry by indicating that private security companies are subject to legal regulation. Yet this literature is limited in two ways. First, it overlooks the role of legal knowledges in security work. Second, it neglects corporate security. Where law is mentioned, most accounts of private security tend to focus on the legal tools available to contract private security agencies (see Rigakos and Greener 2000; Rigakos 2002; Button 2003). Typically, this includes discussion of property and trespass law. However, focusing exclusively on trespass law can limit the scope of analysis. What has gone unstudied is how security agents use legal knowledges and how these operatives are simultaneously worked on by others’ legal tools. Although one important stimulus for legal knowledges we report on below is licensing law, the formation of legal knowledges in corporate security lies well beyond enabling statutory regulations for licensing private security agents such as guards. Legal knowledge stems from new forms of law too, which in Canada include privacy statutes and workplace harassment legislation. There has been little discussion of these forms of legal knowledge pertinent to corporate security and even less empirical exploration of how these constrain and enable security work. As Valverde (2009) suggests, sociolegal studies and security studies must examine laws on the books as well as how these are interpreted and applied. These forms of legal knowledge manifest in security practices. However, they do so less as a hammer indiscriminately wielded by corporate security operatives, or a regulatory wrench that hinders their work, and more as the finer, unique tools of a jeweler that quietly adjusts their security work in an ever-changing urban milieu.
Second, to guide our analysis of how legal knowledges are applied in municipal corporate security, we draw from Foucauldian literature on legal knowledges and governance (Hunt and Wickham 1994; Rose and Valverde 1998; Lippert 2007, 2012; Golder and Fitzpatrick 2009). Following Michel Foucault's influence, governance is dependent on knowledge; law is one form and source of knowledge (Rose and Valverde 1998; Levi and Valverde 2001). But our analysis is not restricted by law's content since, in one reading of Foucault, law also “extends itself illimitably in its attempt to encompass and respond to what lies outside its definite content” (Golder and Fitzpatrick 2009, 71). We also wish to approach MCS units, not in the orthodox style of some governmentality studies that, as Rose, O'Malley, and Valverde (2006) note, often invoke a “master” neoliberal script to make sense of empirical findings (see also Lippert 2006). Rather (and more consistent with Foucault's own approach, see Collier 2009), we conceptualize MCS as occupying a problem space, where solutions are constantly devised and “existing elements are taken up and recombined” (Collier 2009, 90). Our purpose is to investigate how knowledges of statutes, court decisions, and quasi-legal codes are interpreted and invoked by corporate security officials and how this shapes their practices.
We also draw from Foucauldian literature on legal knowledges to conceptualize security as a pervasive logic of governing in MCS work. With the rise of MCS units, municipalities are more and more governing the urban through security. Security refers to attempts to forecast and defend against future threats (Valverde 2001, 85). A Foucauldian understanding of security is not realist but instead emphasizes that relevant threats are assembled through discursive and material processes. In a suggestive remark, Foucault (2007, 10) also notes that “security is a way of making the old armatures of law and discipline function.” Beyond the specific intersection of security and legal knowledge in MCS work in Canadian cities, the analysis that follows shows that governing through security in an urban problem space depends on legal knowing more broadly. Using this lens to extend the literature on legal regulation of private security, we examine how MCS agents interpret law as part of their work.
Thus, we view these legal knowledges as comprising what in sociolegal studies is conventionally called legality (see Silbey 2005). However, we depart from a focus on legal consciousness and cultural transmission of perceptions of law. Although we acknowledge Cooper's (1995) point that municipal actors may depict their relationship to law in ways that parallel understandings of law among the powerless, here we are disinterested in discerning legal narratives and their ideological function of perpetuating law's public support despite its consistent failings and role as a “headless tyrant” (Silbey 2005, 326–28). To the extent we are interested in studying a tyrant, it is one that has a smaller head compared to its federal and provincial (or state) government counterparts and that with its growing corporate security arm is more able to act like a state, as evinced when it helped halt the most significant urban protest movement of the twenty-first century in its tracks. Legal techniques and how they operate at a particular level of government are thus understood as one element of security projects.
Third, we draw on the sociolegal literature on urban governance.1 Municipal bureaucracies, like MCS units, are interesting sites in which to study legal knowledge because of their dual role as legal agents and subjects (Bernstein 2008). Municipal does not always equate to urban governance, but in this instance it does since MCS units were found only in cities of 150,000 people or greater. The work of Blomley (2004, 2011) is relevant to our purpose here, not merely because of his focus on a Canadian city, Vancouver, but also in his deployment of Foucauldian conceptions of legal knowledge to make sense of how protests and vulnerable urban populations in “public space” are governed. In his study of pedestrianism, Blomley (2011, 10) shows how mundane urban public spaces like sidewalks are subject to regulation made possible by legal knowledges and how pedestrianism has emerged as a municipal logic of governing.2 Valverde (2011b) has likewise shown that planning law and logics of urban governance are “more flexible, contradictory, and fragile than critical urbanists assume” (273) and often entail governance of little things such as the urban phenomenon called “nuisance.” In an acclaimed historical study by Novak (1996), municipalities in the United States are associated with the police power that involves considerable discretion in dealing with nuisance. Novak details the range of municipal ordinances operating irrespective of, for example, private property rights to confront nuisance. Property and nuisance law are an additional source of legal knowledges for MCS. These units must be situated among urban governance trends, which we do by showing how nuisance laws are one stimulus among many for the legal knowledges flowing through them.
Research strategies for our project include drawing on analysis of freedom of information (FOI) requests, municipal government documents, and interviews with MCS managers and personnel. These steps of the research design were sequential, each informing the next. The study thus adopts a triangulation strategy (see Miles and Huberman 1994) involving methods and data types compatible with the exploration of legal knowledges and governing practices.
To explore MCS practices and legal knowledges we first submitted FOI requests, which offer a means of studying the activities of government agencies that would otherwise remain hidden from external scrutiny. These were sent to MCS units in seventeen Canadian cities: Victoria and Vancouver (British Columbia), Edmonton and Calgary (Alberta), Saskatoon and Regina (Saskatchewan), Winnipeg (Manitoba), London, Ottawa, Oshawa, Brampton, Mississauga, Hamilton, Kitchener, Toronto (Ontario), Montréal (Québec), and Halifax (Nova Scotia). We requested “official job description and governing protocol for City X corporate security. All reports/plans concerning current projects of City X corporate security. All annual reports for the previous four years for City X corporate security. Annual budget and expenditure list for City X corporate security for previous four years.” We requested these documents to learn about the organization of MCS work as well as how legal knowledge enables and constrains it. We received approximately 2,200 pages, which we analyzed with attention to the laws described in MCS policies.3
We then conducted thirty-six interviews with MCS managers, supervisors, and investigators from twelve Canadian cities. Interviews included one-on-one sessions with MCS managers and staff as well as focus groups. We also conducted interviews with security guards contracted by MCS units. Interviews usually lasted between 90 and 120 minutes. These interviews focused on MCS office organization and practices, as well as training and policy making. Data from the FOI disclosures informed the interview questions we posed to MCS personnel, allowing for confirmation and refinement of earlier findings. Below, we investigate how legal knowledges shape MCS practices in Canada, with a focus on trespass law, licensing law, litigation, labor law, privacy law, and workplace violence legislation.
Municipal Corporate Security and Legal Knowledges
Since 2001, at least seventeen Canadian cities have seen the introduction of MCS units. These units are typically housed within the corporate services branch or the law branch of municipalities. All MCS units have a director who must understand federal, provincial, and municipal law. Some teams have several security advisors with similar skill sets (physical security, personnel security, threat assessments, or investigations) who are assigned portfolios (one security advisor might be designated for the transit branch or the recreation branch). These other portfolio units are treated as clients to whom MCS personnel teach security techniques and protocols. However, other MCS units in Canada have security advisors who specialize in investigations or physical security. MCS teams are organized such that some team members are in the flow of different legal knowledges.
MCS personnel engage in many forms of security work. As one MCS manager put it: “We basically have to be masters of everything” (MCS 7). A team of municipal security personnel maneuver through the tents of the Occupy movement in a downtown park and then pass their occurrence reports to public police. An investigator tracks a municipal employee and monitors him as he moves from his desk to a secure area due to a tip from other employees of theft in his work area, “bringing the investigation if it's successful to the police for charges” (MCS 6). A municipal government employee forgets to display his identification badge or swipe it through an electronic reader at a checkpoint as he enters, thus breaking protocol that rouses MCS agents to arrive at the scene. A security director instructs employees at a municipal swimming pool about the risks of leaving doors open after hours and how to invoke trespass law to ward off unwanted clients if necessary. One MCS officer goes through the morning incident report generated by alarm indicators and dispatches officers accordingly as he begins his day in front of the video monitors. Another officer places a sticker on an employee's desk where her computer had been, instructing her she has violated department policy and directing her to contact “MCS.” These activities comprise a day in the life of MCS personnel in Canadian cities. This remarkably varied work of these personnel is distinctively municipal in the sense that their political masters are so spatially and temporally near. For example, in one municipality, an MCS manager related:
Your political leadership, the head of your organization, is immediately there. Right there. Right now. All the time. If something goes wrong in one of their parks, or one of their community buildings, or whatnot, the councilor is not going to hesitate to call you directly. Friday night seven o'clock, a councilor finds out about something, you're on the phone. (MCS 1)
The municipal terrain of MCS personnel is distinctive for this reason as well. But how this varied MCS work is orchestrated in relation to legal knowledges and the urban scale has thus far been neglected in sociolegal studies.
The job descriptions of MCS personnel are one indicator of the pervasiveness of legal knowledge in MCS work. For example, minimum qualifications for the Ottawa corporate security program manager include “demonstrated above average knowledge of the Criminal Code of Canada, the Charter of Rights and Freedoms, the Provincial Offenses Act, Evidence Act, the Trespass to Property Act, the Occupational Health & Safety Act, and other related Acts, laws, legislation, policies, guidelines, and operational procedures.” Part of the job description of the corporate security supervisor in Kitchener is to “supervise the work of all security staff in enforcing by-laws and Trespass to Property Act on City property.” This supervisor also “acts as a Provincial Offenses Officer under the Provincial Offenses Act, issuing Provincial Offences Notices (PON), assists police in downtown initiatives by enforcing city bylaws and council policies, assists the Director of Enforcement to research, develop, and implement new bylaws, and provides testimony as expert witness in court, as required.” In-house MCS guards in Kitchener, Ontario must perform work in accordance with “the Criminal Code of Canada, the Charter of Rights and Freedoms, the Provincial Offenses Act, the Trespass to Property Act, Youth Criminal Justice Act, Controlled Drugs and Substances Act, Mental Health Act, Safe Streets Act, Municipal Freedom of Information Act, Dog Owners Liability Act, Liquor Licenses Act” and also “[investigate] by-law complaints and issues Notice of Violation, Provincial Offence Notices, and lays charges.” The in-house MCS guard also “reads and interprets by-laws/legislation in order to remain up-to-date with changes in laws or acts … and to enforce properly.” As Ericson (2007, 125) notes, corporate-style regulation such as that of MCS units leads to mixtures of criminal, civil, and administrative law. This convergence of law or interlegality in MCS units engenders a stunning amount of legal knowledge to apply in the urban milieu, affecting the tools available to MCS for managing urban space and how MCS work is organized.
Trespass Law and Nuisance
The criminal code grants extended arrest authority to those who own property, with respect to criminal offences committed “on or in relation to” the property. Trespass laws similarly confer coercive powers … on owners of real property … which are not available (because not relevant) to those who do not own such property. Such laws provide for the private police “tool box.” (Stenning 2000, 331)
Although trespass laws are a key component of the private security “tool box,” public sector MCS officers work with trespass law too. The Trespass to Property Act allows MCS personnel to direct persons to leave a property, to arrest them for failing to do so, and to ban them from a property. This parallels the regulation of nuisance, which has been defined as that which is upsetting, unnatural, and out of place (Cooper 2002). Traditionally there has been a close connection between nuisance policing and urban governance, a point we return to below. MCS personnel use the Trespass to Property Act to regulate nuisance but it often involves the contract private security guards that MCS units hire. For instance, a guard is deemed a “person authorized by the owner or occupier of the land” for the purpose of enforcing the Alberta Petty Trespass Act in or on municipal lands. Guards are thus employed by MCS to enforce the Alberta Petty Trespass Act, which states:
Every person who:
without the permission of the owner or occupier of land enters on land when entry is prohibited under section 2.1, or
does not leave land immediately after he or she is directed to do so by the owner or occupier of the land or a person authorized by the owner or occupier is guilty of an offence.
Apprehension without Warrant
Any person found committing a trespass to which this Act applies may be apprehended without warrant by any peace officer, or by the owner or occupier of the land on which the trespass is committed, or the servant of, or any person authorized by the owner or occupier of the land, and may be forthwith taken before the nearest judge of the Provincial Court or justice of the peace to be dealt with according to law.
An MCS manager stated that the “Trespass of Property Act is central because we're agents for the landlord and that gives us our authority to enforce stuff” (MCS 2). Another MCS manager remarked:
We have the ability from Trespass to Property Act. We have our own private activities list. We're all enforcement officers … We can arrest … we're already doing everything possible, and sometimes more than what we need to be doing. (MCS 4)
The Trespass to Property Act is used to remove any persons from municipal lands that MCS personnel define as nuisances. One private security guard contracted by an MCS office related:
[I]t's because a client feels they require security … whether it's to prevent trespass, whether it's to prevent theft. In the case of when we were working for the municipality … it was to identify trespass and make sure that trespassers left the property … it sounds a little heavy handed but the last thing you want is someone getting into a building like that, having them get hurt or worse, and then suddenly the municipality, our organization, everything comes to a stop until things are investigated. (Private Guard 1)
Similarly, in one Ontario city, documents about an MCS-run security workshop for library staff indicate that the Trespass to Property Act “is one tool to help create a secure environment. We can use this to remove individuals from the library. The TPA is a powerful tool and should be used proportionally to the incidence occurring.” What makes MCS work unique is that nuisances that are characteristic of urban space become recast as threats to municipal assets and confronted to avoid leakage into their much broader security and risk-related objectives:
we're looking for anything that breaches criminal conduct, anything that we would deem against the Trespass of Property Act, so anything that is unauthorized in a facility and then any other laws we might use underneath the Trespass of Property Act, so liquor consumption and that kind of stuff … we are very proactively seeing those type of things you know, there's a parks bylaw, there's a Square for this facility by-law, there's a squares by-law … that says you can't drink, you can't have an open flame, you can't sleep overnight, all those type of things and that's the bylaw that we use to evict the Occupy people. So from that side we are greatly involved if it has anything to do with a city facility, the police are only called if we make an arrest or if a matter has escalated to the point where it's just not safe or smart or there's a problem with the person that we're worried about them moving on so … there couldn't just be a very intoxicated person let's say on the Square and [for] us to say, “buddy it's time to go, move it away” because our worry is what happens if this guy goes and gets hit by a car, or this guy is just going to be a problem as soon as he gets to the next [city] facility, so therefore we can deal with it on our own. (MCS 5)
MCS personnel also educate other municipal employees about trespass law, so that the linkage between security and legal knowledges becomes finely tuned. Trespass law in turn bestows on MCS units the police power to regulate nuisance. Thus, in terms of legal knowledge, MCS units find themselves at a crossroads of security skill sets. The Alberta Petty Trespass Act, for example, is intended for private property owners but in MCS units it augments their public nuisance policing “tool box.” What is unique about MCS units’ use of trespass law is that it mimics the way trespass law has been applied to defend private property but does so in public areas and on municipal property meant to be open to citizens.
Trespass acts are an important source informing legal knowledges in MCS work. As noted above, MCS units are public but their skill set mimics private corporate security. Yet MCS work involves more than mimicry of the private sector since in MCS work there is a convergence of municipal, provincial, and federal law and the application of these in an urban milieu. For this reason, we do not limit our analysis to property and trespass law. One MCS manager describes the varieties of legal knowledge circulating through this MCS unit:
Certainly the municipal bylaws and rules of procedure … we abide by those. The collective agreement is key for any corporate security function within any municipality … [W]e're not really enforcement-based bodies, so it's sort of “is what we're doing legal?” “Is what we're doing compliant with privacy legislation and municipal bylaws, and labor law and legal precedent and the collective agreements?” All of that stuff governs what we do.
Because MCS units are uniquely both in-house or internal to a corporation and public, other forms of legal knowledge become pertinent (such as public-sector privacy law). Before turning to these other types of law, we assess how MCS personnel interpret provincial licensing regulations for security professionals, which further illuminates how security and legal knowledge intersect in MCS work.
Provincial Licensing Regulations for Security Professionals
Another way that legal knowledges inform the work of MCS personnel is through law regulating contract security. Here there is cross-over between our focus on MCS units in the public sector and research on legal regulation of private security (see Button 2007). These laws stipulate how persons who provide security and investigative services must be trained and obtain licenses to work. In Canada, these are provincial laws. For instance, in Ontario the Private Security and Investigative Services Act 2007 (originally Bill-159) requires security workers to be licensed, including some types not licensed previously. In principle, this pertains to in-house municipal staff and contracted services. Changes include standards for uniforms, equipment, agency record keeping, business registration, and insurance. The Private Security and Investigative Services Branch of the Ontario Ministry of Community Safety and Correctional Services oversees the Act. As one MCS manager put it, “in Ontario, your Private Investigators and Security Guards Act outlines what security sections can and cannot do.” This provincial legislation has led to changes in how MCS units are organized in Ontario cities. As another MCS manager notes:
We used to be called security officers. Bill-159 obviously changed that. We can't use the term “officer.” We call ourselves corporate security … Q: And how does that affect in-house security? A: Before … we weren't required under that. Now, Bill-159 says if you do … security work, you shall be licensed. Now with that, the licensing and that is … “Here's your 80 bucks, here's a test” … don't get me wrong, it's not a bad thing, but … at first everybody in our area went (groan), you know? They fear right away. “It's a test? What's it going to be?” Of course, everybody writing the test was like “Eh, not a problem.”
This provincial legislation prescribes changes in how MCS units contract with private security guards. All new license applicants must not only take this sixty-question multiple-choice test, but also complete a forty-hour training course that includes first aid certification and use of force training. The Act pertains not only to contract security guards but to all security professionals. The situation is analogous across Canadian provinces. For instance, the new Security Services Act in British Columbia, passed in May 2012, introduced parallel training standards. In Alberta, in 2010 the Solicitor General created a Security Services and Investigators Act. As one MCS manager in Alberta remarked: “With new regulations for private security, I feel more comfortable. Prior to having that, I didn't know what the person was in that uniform, coming into my facilities … or whether or not they even had a security clearance check done. They're starting to help the industry raise the standards for security, so that we're not looked at as the janitorial staff like we may have been 25–30 years ago.” When asked if there was anything that he disliked about the law, the MCS manager said, “they didn't think through what the actual implications were going to be in the industry when they did it … it ended up creating a massive backlog. It was supposed to be two weeks for people to get individual licenses. It ended up being anywhere up to six months.” This MCS manager suggests that the legislation could have better anticipated how it applied to urban security units like MCS. Yet these provincial laws are interpreted in diverse ways. In one city, avoidance of provincial private security regulation occurs not because MCS units are corporate but because they are public. Although MCS managers are aware of this provincial legislation, it is not necessarily followed in practice.
[W]e've taken the position that our guys are not subject to the provincial licensing apart from one guy who is an investigator … [W]e've got one guy who will take security occurrence reports … and because of the nature of his work he kind of got captured by the licensing requirement but … we took the position with the backing of our legal people that the nature of our work is not what was intended by that legislation. (MCS 12)
[T]hey were mandating a bunch of stuff that we feel … didn't make sense for us. Like it was … designed for you know ABC Security Company there … [W]e were gone beyond all that and it seemed like if we were going to have to do this then we are going to have to … not spend our money on the higher level stuff that we were doing and we're going to have to spend it on the low level stuff, some of which doesn't even relate to us. (MCS 13)
Moreover, MCS managers did not think the provincial regulator's system for citizen complaints about security officers should pertain to them because they are a public body with their own hiring and dismissal protocols. Thus, MCS units avoid law in some respects since their training and work experience exceeds what is required under the provincial licensing requirements. This is an example of what Bernstein (2008) calls the disparaging of law in municipal bureaucracies—laws are not always followed when officials do not feel the law pertains to the urban milieu.
Litigation and Legislative Reasons for Security
Aside from the aforementioned Acts, Codes, or Policies, the City of Toronto needs to be concerned with litigation. Employers are expected to maintain a safe work environment and civil action could result in the event of the City failure to maintain a safe workplace. (City of Toronto 2009, 10)
According to this policy, which is typical of MCS units across Canada, MCS personnel must identify present and future “threats” and apply “counter-measures” while remaining cognizant of legal liability risk. The possibility of litigation is one of the legislative rationales for MCS security initiatives. Instead of being only preemptive, MCS personnel describe their security work as responding to existing law and the possibility for future litigation against the municipality. One manager remarked:
the last thing the City wants … is to pay for a big lawsuit or be liable for an employee who is drunk at work, or high on drugs, or does something criminal at work that hurts someone else, and the City gets sued. So there are a lot of different avenues and angles that they look at us with. (MCS 1)
MCS units find themselves in the middle of a busy intersection of legal knowledge flows, reacting to new public laws while trying to mitigate future litigation as a form of private law. Many other legal knowledges cross-cut municipal government, which is why analysis of trespass acts and nuisance policing laws or licensing acts alone fail to reveal the volume and complexity of the legal knowledges with which MCS personnel work.
Consider, too, the “legislative reasons for security” in Toronto written by the MCS manager. These legal knowledges at once constrain and enable MCS practices and underscore the municipality's role as both employer and regulator in an urban milieu.
Employees, customers, and the public expect organizations to identify and anticipate areas of risk and set in place a cohesive strategy across all functional lines to mitigate or reduce those risks. The City of Toronto has a responsibility to provide and maintain safe and healthy working conditions by complying with all applicable policies, Acts, and Codes and that this compliance is documented and monitored to ensure applicable measures and actions are taken. The City of Toronto also has a duty to protect City of Toronto employees and members of the public from foreseeable dangers. Knowing the current and foreseeable threats may provide the City of Toronto with a duty to act and implement applicable counter-measures. (City of Toronto 2009, 10; emphasis added)
The policy goes on to discuss the Occupational Health & Safety Act, the Criminal Code of Canada, the Occupiers Liability Act, and provincial legislation. MCS personnel must interpret all law through a security lens. One MCS manager discussed the new Accessibility for Ontarians with Disabilities Act and its ramifications for the municipality and for how MCS personnel approach litigation and risk. As he put it:
we've got new legislation in Ontario … which is Accessibility for Ontarians with Disabilities Act. You look at that and the impact that has on risk and security. So is your facility accessible to people with disabilities? It has a security impact because now companies need to implement security technologies like door operators to ensure that Ontarians with disabilities can access the site. (MCS 5)
Consequently, the legal knowledges preoccupying MCS units are not simply those stereotypically related to policing or private security, since MCS work extends beyond these functions to other practices that shape conduct on municipal property. Although provincial/state and federal law are not necessarily prescaled to make sense in cities, these laws must be interpreted and applied in the urban milieu, which is why we argue that MCS units are governed by and govern through legal knowledges.
Labor and Employment Law
MCS personnel work with labor and employment law too (Stenning 2000, 332), including collective agreements with municipal workers, which demonstrates MCS units operating at the intersection of public and private law. In one instance, legal knowledge is transferred to an MCS unit from within municipal government.
I've been called by union executives who said “some of our own people here are doing this and that, and it goes against the grain. We can't report them … but you should know. Here's what's happening, it should be addressed before somebody gets hurt.” And I know that they would be chastised within the union if membership would find out that they'd done it, but they do it for two reasons. Number one … Bill C-45, that came in when they changed the section in the criminal code about negligence and how far down the ladder it could go. Remember, they are covering their asses, because they don't want to turn around later if somebody does get hurt and say “oh, no, when you had a problem we didn't bury our head in the sand, we phoned Jeff at corporate security and we told him all about it.” I'm not stupid. I understand what they're trying to do. (MCS 1)
Passed in federal parliament in 2004, Bill C-45 amended Canada's Criminal Code regarding criminal liability of a corporation's employees, pushing liability further into municipal governments. Rank-and-file municipal employees tend to be unaware of the scope of MCS practices and MCS personnel maintain a low profile to conduct internal investigations. However, municipal department managers are usually aware of MCS investigative work. The example above entails passing the legal liability buck insofar as MCS personnel are notified of problematic employee practices because Bill C-45 raises the possibility that any supervisor could be named in employee litigation.
Not all relevant legal knowledges pertaining to employees result from interpretation of federal or provincial legislation. The legal knowledges that constrain and enable MCS practices can be generated from unexpected sources. For instance, collective agreement changes pressure MCS investigators to speed up their searches.
I am talking about taking into consideration all the various labor laws and the labor case laws … There's an employee for the City … and he's suspended … Recently they just put into the Collective Bargaining Agreement that while you are in suspension you get paid. So automatically now management is saying, “Hey this guy is under suspension, you guys are investigating him, so I want that investigation done within a day or two so that I can decide what … to do with this guy. I don't want to keep paying him while he's not working for me”. In the past … you were suspended without pay. (MCS 1)
We return to the issue of MCS investigation of employees and legal knowledge below. However, the excerpt above reveals the way that labor law engenders security relations in municipalities and how MCS units are drawn into governing municipal employees through legal knowledge.
Knowledge of privacy legislation also influences MCS work, including how MCS personnel design physical security and video surveillance systems for municipal facilities. Overseeing video surveillance in sometimes hundreds of municipal facilities, MCS personnel invoke privacy protection guidelines and law about collection of surveillance images and personal information. As one MCS manager remarked:
Image recording is different than surveillance. We don't surveil, okay? … We're pretty good at catching things out of the ordinary. If there's extraordinary events we can go back to it and review the image. We have privacy legislation that we have there. Reviewing an image is different than wanting an image to see, broadcasting the image … we can review. If it is an issue then we have to involve our freedom of information people. If police need to be involved … documents have to be signed. (MCS 7)
Thus, legal knowledge stemming from privacy law also affects MCS-police relations, particularly regarding investigative practices. However, privacy law is interpreted differently for investigations of employees accused of theft or other misconduct:
we're not sworn police officers … so we don't run parallel investigations. We do run an investigation, whether it's a criminal matter or not, but it's strictly from the internal side of things … but we don't interfere with a police investigation and the police … as you know, with privacy legislation, can't give us too much detail of their investigation. We conduct our own investigation in parallel, although it's not officially in parallel … we'll share information with them, they can't share with us necessarily, so it's kind of a one way parallel street. (MCS 1)
This “one way, parallel street” means that MCS can conduct employee investigations as any private company's corporate security office would. However, this arrangement also allows MCS personnel to redirect information to the police as they deem fit since they do not believe they are subject to privacy legislation like police. The above excerpt demonstrates how privacy law functions in MCS units. Either MCS investigators “get their man” or public police will do this on their behalf through information sharing.
Workplace Violence and Health and Safety Legislation
Violence in the workplace and law related to it such as health and safety legislation are also pertinent to the work of MCS personnel. This involves balancing the governance of internal employees, an external citizenry, and their potential interaction in urban space. As with privacy legislation, MCS personnel often deem legal knowledge related to workplace violence legislation to be challenging:
there's violence in the workplace legislation … it's a touchy situation, because you want to be careful on the issue, but you also want to respect their privacy. So it's a juggling act at that point and we have to err on the side of caution and safety … I'll give you a simple example. Mrs. Smith comes in. Mr. Smith is beating her regularly and he could come into work. Well, first of all, that's a threat, but do you want all of her coworkers to know that there's domestic violence? Now you've got other [privacy] issues. So you have to tread carefully. (MCS 4)
In addition to shaping ongoing practices, some of the foregoing legal knowledges are claimed to have influenced the recent rise of MCS units discussed earlier. Note how one MCS manager invokes health and safety legislation and lawsuits as a rationale for the creation of his MCS unit.
Q: When did the MCS unit become part of the municipality?
A: it may be a shift in times, shift in crime trends, growth … And it probably has a lot to do with risk management, legislation, you know, occupational health and safety … [P]eople say “we gotta do more, we gotta make sure that we're doing our due diligence to not only protect our corporate assets, but our employees at the same time.” And who knows, maybe it might be driven forward by lawsuits … that they finally say “wait a minute, we need to have this in-house so that we can control it a little bit more and come up with our own strategies” rather than just relying on the [public] police service. (MCS 19)
As with the Accessibility for Ontarians with Disabilities Act noted above, new law has unforeseen implications for MCS work. All law is interpreted through a security lens, including workplace violence legislation:
there was another piece of legislation that came in last year which was the Workplace Violence and Harassment Legislation or Bill-168 and from a risk perspective what has to happen in Ontario is every organization with five employees or more must conduct an assessment of the risks of violence and harassment … then there's a training component. So you've got to teach your staff about unacceptable behaviors in the workplace … and it's not just worker-to-worker violence and harassment, it could be vendor-to-worker, it could be client-to-worker. (MCS 5)
Bill-168 requires all Ontario employers to conduct regular security risk assessments, which fall on the desks of MCS personnel. Passed in 2010, Bill-168 introduced amendments to the provincial Occupational Health and Safety Act, meaning that employers now must prepare and implement policies about workplace violence and harassment and provide instruction to workers about these policies. Employers use this legal knowledge to assess workplace violence risks and ensure controls are implemented. As one MCS manager indicated: “it's a significant shift in Ontario because it does add violence and harassment in the workplace to the Occupational Health and Safety Act, which is going to drive more organizations, especially municipalities, to have somebody dedicated to a security type function” (MCS 5). MCS translates distant law into in-house security terms, giving ambivalent legislation decisive security meanings and transforming hard legal decrees into soft security utterances to hush nuisances and mute myriad security problems before they speak up in urban space.
Discussion: Legal Knowledges and the Urban Problem Space
The foregoing demonstrates that MCS units are enmeshed in the circulation of legal knowledges and that these enable and constrain the security work of MCS personnel. The buildings, lands, services, and workers of municipalities are a complex “problem space” (Collier 2009) where security issues must be worked out in relation to the legal knowledges that stem from different levels of government and private law. Trespass acts allow MCS personnel to operate with a police power in municipal facilities. MCS work cannot be reduced to enforcement of property and trespass acts, however, insofar as there are many legal knowledges flowing through MCS units. As federal and provincial laws are passed they must be interpreted and applied by MCS personnel. Many laws do not pertain to security per se, so MCS units are tasked with filtering these through a security lens and discerning how these knowledges apply in the urban milieu (cf. Levi 2009; Valverde 2009). This amalgam of legal knowledges enables MCS units to exercise a broad style of security governance. There are also legal knowledges, such as licensing regulations, by which MCS units do not always abide because they are deemed too constraining.
MCS agencies operate at the convergence of law from different scales, a scenario not evident in either corporate security units of private corporations or operations of “higher” up federal government agencies. Their political masters are more spatially and temporarily local than “higher” government agencies too, that is, “right there, right now.” Our argument about legal knowledges and MCS units has two components, one related to the idea of nuisance and police powers in municipalities and another related to the interpretation and application of legal knowledge. Consistent with the police power (Novak 1996), MCS units must manage urban “nuisance,” its reduction being a key MCS purpose. Although the Canadian context is somewhat different (see Levi and Valverde 2006), it is this connection that helps provide MCS units with wide-ranging legal powers. Belying the sparse attention it has received in sociolegal studies, “the capacious and rather fuzzy category of nuisance enables a significant amount of legal governance” (Valverde 2011b, 292). Some elements of MCS units, most especially practices related to trespass (and including those directed at the Occupy Protest in London—City of London 2011), are based on nuisance governance. This attention to nuisance distinguishes these practices from other MCS practices, since “nuisance governance is basically backward-looking” (Valverde 2011b, 296) while other kinds of MCS work such as asset protection are precautionary and future oriented. The police power is most often deemed legitimate at the municipal level (Valverde 2011b, 286) due to the variation in land use and human activity construed as nuisance in urban areas.
MCS units are subject to federal and provincial law, but the endless interaction of legal knowledges or interlegality demands that MCS personnel constantly interpret them on the municipalities’ behalf. Relevant MCS practices must then be finely tuned to fit the urban problem space (Collier 2009). This space is created through the specific form of government that many municipalities take, the material contours of the urban setting in which such work is conducted, and the jurisdiction security agents, including MCS personnel, claim to defend and protect. Law of varying kinds (private and public) and levels (provincial and federal) must be rendered practical and applied in urban space. Provincial or state and federal law is not designed to make sense in the urban problem space; MCS personnel must interpret and apply it in ways deemed relevant to their urban security aspirations.
We have examined how MCS practices are shaped by legal knowledge and how this varies by form and site in Canadian cities. Identifying the legal knowledges that relate to MCS practices has implications for sociolegal scholars seeking to understand corporate security practices generally but also security agencies in an urban milieu more specifically. Some legal knowledges have little to do with security on the surface but nonetheless become implicated in MCS work and in governing through security. We have conceptualized these legal knowledges as techniques of security deployed in particular spaces, and in so doing we have advanced Valverde's (2011a) call for bridging sociolegal studies and security studies. It is not enough to examine law explicitly meant to regulate security, as in much of the private security literature (but see Stenning 2000; Button 2007). Instead, we have argued what must be explored is how legal knowledges enable and constrain MCS practices. We have also engaged with the literature on law and urban governance to show how municipal officials distinctively interpret and apply law from different levels and of numerous types to confront what is perhaps the defining element of the urban milieu—nuisance—but also to reduce risks these laws address within municipal government. This milieu is an urban problem space that comprises a workplace as much as sites frequented by the urban citizenry. The circulation of people throughout the municipality and transgressing various rules and law reveals an added “problem” that MCS units confront. These units are shown interpreting, avoiding, and embracing various laws as they govern through legal knowledge to achieve security goals. The intersection of legal knowledges, corporate security, and urban spaces is pertinent to explore as more human activities within municipalities are defined as security concerns and decisions in municipal government are made in closed meetings to which security personnel are invited. One of these meetings was attended by MCS where a plan was hatched to remove the Occupy Protest, not only from London's Victoria Park, but also from an urban problem space.
Although not focused on legal knowledges per se, significant here is the work of legal geographers Don Mitchell and Lynn Staeheli (2008) on developments in US cities such as San Diego and Washington, DC and the earlier work of Mike Davis (1992) on “Fortress L.A.” These authors examine the securitization and constriction of public urban space through various means, especially via public police wielding criminal law (see Davis 1992, 221–63; Mitchell and Staeheli 2008, 3–4) against a backdrop of gentrification and neoliberalization. Consistent with the thrust of empirical work by ground-breaking sociolegal scholars such as Valverde and Blomley described above, however, other urban scholars are now questioning the “ubiquity and coherence” of such practices that are typically called the “domestication” of public urban space (see Koch and Latham 2013, 19).
Blomley (2011, 36) reports that municipal engineering officials invoke “safety” as a key justification of pedestrianism, which he notes differs from public security, since safety pertains specifically to “the absence of impediments.”
Use of FOI has methodological limits. Requested material is sometimes tagged as politically contentious, which leads to delays. It is also sometimes difficult to determine whether released documents comprise a representative sample of requested material (see Walby and Larsen 2012).