Appeal court orders do-over for criminal-record check legal challenge

The Manitoba Court of Appeal has ordered that a case involving a Winnipeg’s man battle to have stayed charges scrubbed from his criminal record be heard once again by the lower court.

It would be wrong to decide this issue based on ambiguous information, says Court of Appeal

Michael Kalo took the Winnipeg Police Service to court over disclosure of stayed sexual assault charges from 2009 in his criminal record check certificate. After a successful appeal by city lawyers, the case will now start over with a fresh hearing. (CBC News)

The Manitoba Court of Appeal has ordered that a case involving a Winnipeg's man battle to have stayed charges scrubbed from his criminal record be heard once again by the lower court.

Michael Kalo claims to have been fired from his job as a school bus driver in 2017 after the Winnipeg police included stayed sexual offence charges in a vulnerable-sector check. 

On Monday, the appeal court concluded Kalo's case was too crucial of a societal issue to allow to it to "ambiguously" progress through the courts. 

No statutory frameworks exist in Manitoba to guide how details of non-convictions are disclosed on a citizen's record by police agencies — meaning information released could vary from jurisdiction to jurisdiction.

"This matter proceeded through the courts in such a confusing manner that it was difficult for this Court to determine what the record was in front of the application judge and on what basis his determination was made," the panel of judges wrote in their decision.

Kalo, who is self-represented and on social assistance, was also awarded $5,000 in costs because of delays caused by the confusing manner in which the city approached the case.

Lower court decision appealed by city

In the spring of 2018, when Kalo originally took the issue to court, Manitoba Court of Queen's Bench Justice Sheldon Lanchbery rendered a scathing decision against the Winnipeg Police Service, ordering them to hold a reconsideration hearing.

Later that summer, after Kalo unsuccessfully challenged his case in front of police, the city launched an appeal arguing that Justice Lanchbery erred by making findings of fact that were not based on the evidence provided.

This chain of events culminated with Monday's decision to allow the appeal, effectively punting the whole case back to square one.

"I do not believe that the record in front of [Justice Lanchbery] was complete so as to allow for analysis of the procedure adopted by the WPS. More importantly, based on the record in front of us, it is not possible to determine whether the application judge was correct in his conclusion or in the remedy he ordered," Justice Freda Steel wrote in the appeal court's decision.

'A good day': Kalo

Michael Kalo says his interpretation of the decision shows he came out on top.

"Today's decision, now by our highest court, is one more important step in challenging a policy which was made by the city police with no authority, no justification and no fair process. A good day for all citizens of Manitoba who might need a criminal record check certificate," Kalo told CBC News.

Chris Gamby, a Winnipeg-based lawyer and spokesperson for the Criminal Defence Lawyers Association of Manitoba, says the court of appeal recognized the importance of this issue and wants to get it right.

"Pretty much anybody who has ever been charged by the police for any crime could potentially be affected here," he says.

"No one really has actually asked the question as to whether what the Winnipeg police are doing is ultra vires or not, meaning it's within the scope of their power to do it or not. They may not have jurisdiction to be doing what it is that they're doing and that's a question for another day," says Gamby.


Jacques Marcoux

Data journalist

Jacques Marcoux is a former CBC News investigative reporter specializing in data analysis. He continues to contribute to CBC News.