AUGUST 2010 THE QUÉBEC PRIVATE SECURITY ACT AND ITS APPLICATION TO ELECTRONIC SECURITY FIRMS Construction, Engineering, Surety and Fidelity Group CONSTRUCTION LAW BULLETIN www.blgcanada.com In 2004 the Québec Government introduced the Private Security Act 1 (the Act ) to provide a modern legislative and regulatory framework for private security activities. The previous legislation, an Act respecting detective or security agencies 2 was considered to have run its course and no longer responded adequately to the requirements of the security industry and of the public. The Act regulates the sectors of guarding, watching or protecting persons, property or premises, investigations, locksmith work, electronic security systems, valuables transport and security consulting. A licensing and overseeing structure administered by a government agency known as the Bureau de la sécurité privée (the Bureau ) is provided for. The Bureau s mission is to protect the public with respect to private security activities. The Act sets out the Bureau s structure and organization, its regulatory powers, the standards of conduct for agent licence holders and the manner and extent to which the Bureau can oversee such conduct. Finally, the Act provides for penal penalties for any infractions to the Act. Portions of the legislations have been enacted over the years. The licensing requirements of agencies and agents, as they are known in the legislation, came into effect on July 22nd, 2010 3. Scope of the legislation The Act applies to private security activities which include: security guarding which includes watching or protecting persons, property or premises mainly to prevent crime and maintain order; 1 Bill 88 (2006, C-23). 2 R.S.Q., C-8 3 O.C. 573-2010, June 23, 2010.
investigation activities 4 ; locksmith work; activities related to electronic securities systems, namely, installing, maintaining and repairing and ensuring the continuous remote or monitoring of burglar or intrusion alarm systems, video surveillance systems and access control systems, other than vehicle security systems; the transport of valuables; and security consulting, namely, providing consulting services or protection against theft, intrusion or vandalism independently from other activities referred to in this section and particularly by developing plans or specifications or presenting projects. The Act furthermore provides that it does not govern private security activities when they are carried out by peace officers and police force employees and interestingly, members in good standing of our professional order governed by the Professional Code (R.S.Q., C-26) in the practice of their profession 5. Two licences The Act requires that any person operating an enterprise that carries on a private security activity must hold an agency licence of the appropriate class, which include: security guard agency; investigation agency; locksmith and electronic security systems agency; valuable transport agency; and security consultant agency 6. The Bureau, when issuing an agency licence, also issues a copy for each establishment operated by the Applicant. 4 Which include searching for persons, information or property, particularly searching for information on an offence or collecting information on the character or conduct of individuals (Sub-paragraph 1 (2) of Section 1). 5 Sub-Section 2 (3) of Article 2. 6 Sections 4 and 5 of the Act. 2
The Act requires that any application of an agency licence must be filed by a natural person who is engaged fulltime in the activities of the enterprise who acts as the representative of the enterprise for the purposes of this Act. The representative who seeks the licence on behalf of his enterprise must meet certain conditions: be of good moral character; never have been convicted, in any place, of an offence or an act or omission that is an offence under the Criminal Code (Revised Statutes of Canada, 1985, chapter C-46) or an offence under Section 183 of that Code, under one of the acts listed in the section and is related to the activities foreseen by the agency licence application is filed, unless the representative has obtained a pardon; and meet any other conditions determined by regulation. Moreover, the representative must follow the training provided by the Bureau within six (6) months after the date on which the representative is designated or, if the representative is designated before the agency licence is issued, within six (6) months after the date on which the agency licence is issued. Section 8 also imposes certain obligations on the shareholders of the enterprise and the directors of same who must also be of good moral character and never have been convicted of any offences under the Criminal Code similarly to that of the Applicant. Finally, the company or enterprise itself must satisfy certain criteria: operate at least one (1) establishment in Québec; be solvent; be covered by liability insurance, the coverage and other features of which are determined by regulation; and provide such further security in the amount and form determined by regulation to guarantee the performance of its obligations. Finally, the Bureau is provided with the requisite discretion, at section 10 of the Act, to refuse to issue an agency licence if within the five (5) years preceding the application, the owner, the representative or a director of the enterprise was denied an agent or agency licence or renewal thereof or held an agent licence that was subsequently suspended or cancelled. 3
A mechanism is implemented to review, on a yearly basis, that all of the conditions required to maintain a valid licence are maintained. The Bureau will provide the Sûreté du Québec with the information required to verify whether the conditions are still satisfied by the licence holder. There is also a number of provisions dealing with the impact of the Bureau s decision to either suspend, cancel or refuse to renew an agency licence and the process for seeking review of same. The Regulatory framework There are two regulations presently enacted pursuant to the Act. The Regulation under the Private Security Act 7 deals with the licensing requirements and information to be provided for either an agency or an agent s licence. A fee of $1,100 is required for an agency which carries out electronic security systems activities and the holder of any such licence must maintain, throughout the term of the licence, a civil liability insurance policy with a minimum coverage of $1,000,000 per incident for any incident that occurs in the course of its activities for bodily injury, moral or material damage. Moreover the security that the agency must provide to guarantee the performance of its obligations 8, must be in the form of a pledge of money, bonds or an insurance policy in the amount of $10,000. An agency must maintain, at its principal establishment in Québec, a register of the persons in its employ who carry on a private security activity. The Regulation respecting the training required to obtain an agent licence to carry on private security activities 9 sets out the minimal training requirements of certain but not all of the private security activities. Section 1 of the Regulation imposes minimal training requirements for security guarding, investigation, transportation of valuables activities but does not provide any minimal standards for activities related to electronic security systems. 7 R.S.Q. C S-3.5, ss.107 and 108. 8 Sub-section 9(4) of the Act. 9 R.S.Q. C S-3.5, s,112. 4
THE QUÉBEC PRIVATE SECURITY ACT AND ITS APPLICATION TO Conclusion As a result of the coming into force of the latest provisions of the Act, private electronic security firms are required to obtain agency licences to carry out their activities in Québec. Licences are now required for firms that carry out both remote monitoring of security systems but also where the firms provide design or consultancy services in the implementation of any such systems. The financial and security requirements imposed by the Act and the Regulations will undoubtedly ensure that only those security firms with sufficient financial and technical capabilities operate in the Québec market. This has largely been viewed as a positive development by the public at large. We can provide further guidance and assistance to firms operating in the Québec market to ensure compliance with the requirements of this licensing regime. Contact: Me Yvan Houle Tel. : 514-954-3146 yhoule@blgcanada.com Borden Ladner Gervais LLP Lawyers Patent & Trade-mark Agents C a l g a r y 1000 Canterra Tower 400 Third Avenue S.W. Calgary, Alberta, Canada T2P 4H2 tel: 403 232-9500 fax: 403 266-1395 M o n t r é a l 1000 de La Gauchetière Street West Suite 900, Montréal, Québec, Canada H3B 5H4 tel: 514 879-1212 fax: 514 954-1905 O t t a w a World Exchange Plaza 100 Queen St., Suite 1100 Ottawa, Ontario, Canada K1P 1J9 tel: 613 237-5160 1-800-661-4237 legal fax: 613 230-8842 IP fax: 613 787-3558 To r o n t o Scotia Plaza, 40 King Street West Toronto, Ontario, Canada M5H 3Y4 tel: 416 367-6000 fax: 416 367-6749 We publish newsletters from time to time on matters of interest to our clients. If you did not receive this newsletter directly, please contact us by calling 1-877-BLG-LAW1 or emailing subscriptions@blgcanada.com and we will add you to our mailing list for future newsletters. If you received this newsletter in error, or if you do not wish to receive further newsletters, you may also ask to have your contact information removed from our mailing lists. This newsletter has been sent to you courtesy of Borden Ladner Gervais LLP. We respect your privacy and wish to point out that our privacy policy relative to our publications may be found at http://www.blgcanada.com/home/website-electronic-privacy. 2010 Borden Ladner Gervais LLP Va n c o u v e r 1200 Waterfront Centre 200 Burrard Street, P.O. Box 48600 Vancouver, British Columbia, Canada V7X 1T2 tel: 604 687-5744 fax: 604 687-1415 Wa t e r l o o R e g i o n Waterloo City Centre 100 Regina Street South, Suite 220 Waterloo Ontario N2J 4P9 tel: 519 579-5600 fax: 519 579-2725 IP fax: 519 741-9149 www.blgcanada.com Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership Printed in Canada