Edmonton

Rules around police background checks need tightening, says privacy boss

Alberta’s privacy watchdog is calling on the province to clarify the consent laws around criminal background checks following a court ruling which concluded there was a “legislative void” around the practice.

Lack of clarity on consent and what to include is leading to privacy breaches, commissioner says

Information and Privacy Commissioner Jill Clayton is calling on the Alberta government to clarify the laws around criminal background checks. (Erik White/CBC)

Alberta's privacy watchdog is calling on the province to clarify the laws around police background checks following a court ruling which concluded there was a "legislative void" around the practice. 

In a news release Thursday, Information and Privacy Commissioner Jill Clayton included a letter she wrote to Justice Minister Doug Schweitzer, urging the province to "resolve issues" around police information checks and vulnerable sector checks.

"As the Alberta Court's decision illustrates, there are many unresolved issues with [police information checks] and [vulnerable sector checks], such as unfairness, exercise of discretion, consistency, over-disclosure, over-collection by employers, consent and accuracy," Clayton wrote.

"The procedures have led to inconsistencies in decision-making about what to include ... and have resulted in breaches of the FOIP Act."

Police record checks are searches of police databases that are conducted in order to determine an applicant's suitability for things like employment or volunteering.

A vulnerable persons check is the most in depth kind of background check and is intended for people working with children, the elderly, or people vulnerable due to disability or illness. In this case, even pardoned offences can be revealed if they could pose a risk to public safety.

Background checks can also include details about any kind of contact with police, including complaints where charges were never laid, mental health apprehensions, 911 calls or cases where a person was witness to a crime. 

A criminal record check is generally conducted at a local police, RCMP detachment or by a third party company.

In Alberta, anyone can request a background check so long as the person who is the subject to that check consents.

Clayton's letter follows a review by the Alberta Court of Queen's Bench of the Edmonton Police Service's use of background checks. 

No convictions

The judicial review was launched in November 2013 by a man who lost his job of 11 years after his employer asked police for a background check without his consent.

The man had no criminal convictions on record, but had been subject to criminal investigations as a minor and as an adult. 

Police not only sent along those details, they passed judgment on the man in correspondence with his employer.

"It does appear he has some history with sexual assault allegations as well as an assault charge ... no conviction ... either he has had multiple false allegations against him or he has been able to skirt the system on convictions," a Staff Sergeant wrote to the employer.

The complainant accused police of breaching his right to privacy. 

The adjudicator, Justice Robert A. Graesser, determined police had not sought the man's permission for the background check, which contravened Alberta's Freedom of Information and Protection of Privacy Act. 

Uninformed consent

Even if consent was granted, it could easily be considered uninformed consent, Graesser said.

The Edmonton police consent form "makes no reference to information about using investigations, allegations and non-convictions as information that would be included in the background check.

"To be valid, a consent needs to be an informed consent. 'Police files' tells someone nothing, other than a person familiar with what information the police collect and how and where they store it and for how long they store it.

"It is my view that no individual would intuitively understand that 'police files' would include information about unsubstantiated complaints to the police, matters that have been investigated by police for which no action was taken, or matters where charges were laid but the accused was acquitted."

The court recommended police redesign their background check protocols and consent forms to ensure privacy laws are not broken.

Edmonton police did not appeal the court's decision.

Clayton said the lack of clarity around background checks has led to several breaches of the privacy act.

She urged the Alberta government to adopt legislation similar to that recently adopted in Ontario.

Ontario's Police Records Checks Reform Act, which came into effect in November 2018, standardized the laws around police checks province-wide, and clarified that an individual must provide their consent before police can run a record check.

Such checks "have been a long standing issue, not just in Alberta but in other jurisdictions as well," Clayton wrote. 

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