Winnipeg police process for criminal record checks lambasted as 'unfair'
Judge rules in favour of man who lost his job over stayed charges from a decade ago, calls for changes
A Manitoba judge has slammed the process used by Winnipeg police to determine what to disclose on a criminal record check and is calling on the province to consider legislation to provide a framework for the disclosure of acquittals and stayed or dropped charges by police agencies.
On Wednesday, Manitoba Court of Queen's Bench Justice Sheldon Lanchbery wrote in his decision following a judicial review that the manner in which police disclosed details of a stayed sexual assault charge against a Winnipeg man "is not fair, is not impartial and is not open."
In March of 2017, Winnipeg resident Michael Kalo was asked by his new employer to provide an updated criminal record check certificate. Since his new job involved transporting children with disabilities, he required an enhanced record check, called a Police Vulnerable Sector Check (PVSC).
Kalo's previous records checks had always come back clean. But when he received his new certificate, for the first time it contained information about decade-old charges for sexual assault and sexual interference with a child as well as a reference to a current protection order against a former spouse. At the time, the two charges laid by police were stayed by the Crown and no further action was taken.
When Kalo provided his employer with the new certificate, he was terminated.
"It was devastating," said Kalo.
A few months prior to Kalo's request, the Winnipeg Police Service had updated its standard operating guidelines for police record checks. In the case of checks involving employment with vulnerable persons, the reviewing officer has the discretion to unilaterally decide whether or not to disclose details of non-convictions, generally when an applicant may be a child sexual predator or has a history of engaging in fraud schemes.
After unsuccessfully applying for reconsideration with the police, Kalo filed an application to the courts to have the contents of his record reversed.
Judge, jury and executioner
Justice Lanchbery explained that the 2008 stayed charges stemmed from a single incident with a minor and stated there was never any "serious or credible" information related to the incident.
"The WPS becomes the final arbiter as to whether exceptional circumstances exist," wrote Lanchbery. "The effect is that the WPS can now unilaterally release the non-conviction charges to third parties. This process reminds me of the old adage of being judge, jury and executioner."
He also criticized the structure of the reconsideration panel, calling it "flawed and unfair due to procedural unfairness."
Currently a person wishing to contest the details of their record can only submit a written submission to a panel of unnamed members of the Winnipeg Police Service who provide no final explanation for their rulings.
Lanchbery ordered that the WPS hold a reconsideration hearing with Michael Kalo present within 30 days.
Patchwork of policies
No statutory frameworks exists in Manitoba that guides how details of non-convictions are disclosed. Rather police agencies in Manitoba adopt guidelines that adhere generally to the provincial Freedom of Information and Protection of Privacy Act and the Police Services Act.
"The issues raised by Mr. Kalo's motion are of significant importance to the public at large," said Lanchbery.
The Criminal Defence Lawyers Association of Manitoba says this is an important issue for many people.
"People can be charged with offences that they are completely innocent of and it's a situation where you are re-criminalizing without an opportunity to clear their name," says lawyer Scott Newman, a spokesperson for the association.
"Everyone is entitled to be innocent unless and until they are proven guilty," he said.
Newman says one solution could be for the police to notify the person seeking a record check that they intend to include non-conviction details on their certificate and provide a fair appeal mechanism prior to issuing the final document. He says this process mirrors the current process for adding individuals to the sex offender registry.
Need for legislation
In his decision, Lanchbery also called upon the province to standardise the process for determining exceptional disclosures province-wide.
"The processes could reflect what the Parliament of Canada has created for those who have received a pardon. … The problems I have identified may be avoided in the future if legislation existed at the provincial level," he wrote.
Despite the decision, which largely sided with the applicant, Kalo says he's skeptical about change.
"I'm sorry to say, based on my experience, nothing much will happen. Things will be the way they are. They'll find a way to stall it. They'll find a way to go around it. That's my experience so far," said Kalo.
"However, I do intend to keep on fighting to make sure that these recommendations … will be fully implemented in a timely fashion," he said.
Manitoba's Justice Minister's office said in a written statement department officials will be reviewing the decision, but would not comment as the case is within the appeal period.
Winnipeg police Chief Danny Smyth told reporters on Thursday that he agreed the judge used strong language to describe the situation, but Smyth stopped short of making any commitments.
"We don't want to be in a position where we influence somebody's ability to have a livelihood, so we will certainly review what was said during that court case and determine whether changes are necessary," said Smyth.