A.S. v. Peel Regional Police, 2022 ONSC 127

CITATION: A.S. v. Peel Regional Police, 2022 ONSC 127

DIVISIONAL COURT FILE NO.: 026/21

DATE: 20220111

BETWEEN:

A.S.

Applicant

– and –

PEEL REGIONAL POLICE

Respondent

Mindy Caterina, for the Applicant

Sharon Wilmot and Jovana Orabovic, for the Respondent

HEARD at Toronto: August 11, 2021 (by videoconference) followed by written submissions

Pursuant to the order of Favreau J. dated August 1, 2020, there is a publication ban over the name of the applicant, the name of any of the alleged complainants or any information that could identify any of those people. This decision complies with this restriction so that it can be published.

Matheson J.:

1The applicant seeks judicial review of the reconsideration decision of Inspector B. Smith of the Records Services Unit of the Peel Regional Police dated December 18, 2020 (the “Reconsideration Decision”). Inspector Smith upheld the initial decision to include non-conviction records in the response to the applicant’s request for a vulnerable sector check under the Police Record Checks Reform Act 2015, S.O. 2015, c. 30 (the “PRCRA”).

2The applicant submits that the process followed was procedurally unfair and that the decision to disclose non-conviction records was not available under the PRCRA and therefore unreasonable. The respondent disagrees and submits that this application should be dismissed.

3For the reasons set out below, this application is granted.

Vulnerable sector checks

4The PRCRA is relatively recent legislation regarding police record checks that are requested to determine a person’s suitability for employment, among other activities. The PRCRA standardizes the way police record checks are done in order to have a more efficient and predictable process and provides the opportunity for people to receive a copy of their record, review it prior to its release, and seek a reconsideration.

5The PRCRA is intended to both remove unnecessary barriers to employment and protect community safety and vulnerable persons by ensuring that employers have all the necessary information to make employment decisions: Ontario, Legislative Assembly, Standing Committee on Justice Policy, Official Report of Debates (Hansard), 41^st Parl., 1^st Sess., (30 November 2015), at p. 6813 (Hon. Bas Balkissoon).

6The PRCRA addresses three types of police record checks: a criminal record check, a criminal and judicial matters check, and a vulnerable sector check. In this case, the applicant requested a vulnerable sector check.

7The response to the applicant’s vulnerable sector check consisted of non-conviction information. Non-conviction information includes information concerning the fact that an individual was charged with a criminal offence where the charge was dismissed, withdrawn, stayed, or resulted in a stay of proceedings or acquittal.

8The PRCRA limits the extent to which non-conviction information is disclosed. Sections 9 and 10 provide as follows:

9 A police record check provider shall not disclose information in response to a request for a police record check unless the information is authorized to be disclosed in connection with the particular type of police record check in accordance with the Schedule.

10 (1) This section applies with respect to the disclosure of non-conviction information in response to a request for a vulnerable sector check in respect of an individual.

(2) Non-conviction information about the individual is not authorized for exceptional disclosure unless the information satisfies all of the following criteria:

The criminal charge to which the information relates is for an offence specified in the regulations made under subsection 22 (2) (c).

The alleged victim was a child or a vulnerable person.

After reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following:

i. Whether the individual appears to have targeted a child or a vulnerable person.

ii. Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.

iii. When the incident or behaviour occurred.

iv. The number of incidents.

v. The reason the incident or behaviour did not lead to a conviction.

vi. Any other prescribed considerations.

(3) When disclosing a record containing non-conviction information authorized for exceptional disclosure, the police record check provider shall ensure that the record contains the definition of “non-conviction information” found in this Act and that the information is clearly identified as such.

(4) If the individual submits a request for reconsideration in accordance with the regulations, the provider shall, within 30 days after receiving the reconsideration request, reconsider its determination in accordance with any requirements prescribed by the Minister.

(5) Non-conviction information shall not be disclosed if, after a reconsideration, the provider determines the information does not meet the criteria listed in subsection (2).

[Emphasis added.]

Applicant’s request for vulnerable sector check

9On November 9, 2020, the applicant requested a vulnerable sector check in connection with potential employment as a recreation instructor.

10On November 24, 2020, the respondent responded to the vulnerable sector check, which disclosed the following non-conviction information about the applicant:

(i) a criminal harassment charge laid in 2015, resulting in an acquittal;

(ii) a sexual assault charge laid in July 2018, which was withdrawn;

(iii) a sexual interference charge laid in July 2018, which was withdrawn; and,

(iv) a harassing communications charge laid in July 2018, which was stayed.

11Charges (ii), (iii) and (iv) arose from the same course of events.

12An “Exceptional Disclosure Assessment” form was completed in relation to the above vulnerable sector check. The form described it as a memo to file of the Records Search Unit of the respondent. It contains a list of questions and answers that include additional information about the reasons for the initial decision to disclose, as well as a list of the people who were consulted in the process.

13The answers to the assessment questions on the above form confirmed that the four charges fell within the list of offences for exceptional disclosure and stated that each of the incidents included victims under the age of 18. The additional information given on the form included the following detail about why the applicant was not convicted on the above charges:

In the case of [the 2018 charge of] (Criminal Harassment) [A.S.] was alleged to have made repeated contact with the victim and her children indicating he loved her children and wanted to play with them despite being told to stop. It is alleged he would refuse to leave the residence when directed to do so and would leave various gifts at the residence on separate occasions to the point that the victim had to pull her children from school and relocate for their safety.

It was also alleged that [A.S.] had sent inappropriate text messages to both her 9 and 12 year old children.

In the case of [the 2018 charge of] (Criminal Sexual Assault and Sexual Interference) Between the period of September 2017 - January 2018 [A.S.] was alleged to repeatedly kiss the 6 year old victim close to her mouth and ignored repeated requests from the victim to stop.

Upon speaking with P.C. S. Morse he disclosed the following information:

The crown did not want to proceed with charges as the victim’s mother did not want to subject her children to criminal proceedings once they got [A.S.] to stop contacting/following them.

[A.S.] did break into the house leaving gifts/food for the children

[A.S.] is not diagnosed with any mental disabilities, but does function at a lower level

He seeks to befriend children

he pled down to harassing communication which came with a discharge/withdrawn peace bond.

[A.S.] was a ski instructor in the past where his pattern of behaviour and gravitating towards children was also noted.

In the case of [the 2015 charge of](Criminal Harassment) [A.S.] was alleged to have repeatedly contacted the victims including a child in an attempt to meet with them despite being advised to stop. The accused/victim are unknown to each other.

Upon speaking with Det. Singh he disclosed the following information:

The judge had a reasonable doubt about one of the elements of criminal harassment. He had a reasonable doubt that the victim “feared for her safety” and the crown could not get the witness to say that on the stand.

There was no dispute that the events actually occurred.

Det. Singh is looking to see if an additional peace bond can be added (801.1 vs 810.01) to flag [A.S.] on CPIC due to his pattern of behaviour.

14The above document was not provided to the applicant. The “Response Form” that he received only set out the information that had been found to meet the Exceptional Disclosure Assessment – specifically, a list of the four charges with dates, locations, and the disposition of each charge.

15On December 11, 2020, the applicant requested a reconsideration. O. Reg 348/18 under the PRCRA sets out what must be done on the reconsideration:

In reconsidering its determination, the police record check provider must,

(a) apply the criteria set out in subsection 10 (2) of the Act;

(b) consider entries in respect of the individual;

(c) consider any written submissions from the individual; and

(d) if the police record check provider is a member of a police force designated by a chief of police for the purposes of the Act, consult with at least three other members of the police force, including with at least one member who is senior to the police record check provider.

16The applicant retained counsel. Written submissions were included with his request for reconsideration, as contemplated by the above process. The applicant submitted that two of the charges related to the same child and the other two charges related to adults, and there was no “pattern of predation” as required for disclosure, among other submissions.

17The Reconsideration Decision was provided to the applicant by email and included reasons for the decision to uphold the disclosure of the non-conviction information. Inspector Smith concluded that at least one of the alleged targeted victims in each of the charges was a child or vulnerable person. In addition, she concluded that there were reasonable grounds to believe that the applicant had been engaged in a pattern of predation, as required for disclosure under s. 10(2), for the following reasons:

(i) each of the charges involved at least one child under the age of 18;

(ii) there were multiple children involved;

(iii) there was a pattern of allegations of behaviour leading to harassment, sexual assault and sexual interference charges that involved repeated numerous instances over a period of years; and,

(iv) the sexual assault and sexual interference charges were withdrawn because the mother did not want to subject the child to criminal proceedings.

18The applicant then commenced this application for judicial review seeking an order quashing the Reconsideration Decision and a declaration that the criteria for disclosure of non-conviction information has not been met.

Motion to introduce fresh evidence

19The applicant moves to introduce fresh evidence on this application. The proposed fresh evidence is a lawyer’s affidavit. The affiant lawyer provides evidence on information and belief from applicant’s counsel. Given Rule 39.01(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the choice of affiant is problematic. The affiant’s evidence does not all fall within the rules regarding evidence that may be given on information and belief. However, the respondent does not object to the affidavit on this basis. We are therefore prepared to overlook this issue. The respondent does object to most of the proposed fresh evidence on the basis that additional evidence is generally not permitted on an application for judicial review.

20The affidavit includes an account of the steps giving rise to this application, which already form part of the record. It also includes information about the applicant’s prior work as an aquatics assistant and as a snowboard instructor, and his applications for those positions as well as the position of lifeguard, giving rise to the vulnerable sector check. The affidavit also provides evidence of the impact of the decision to disclose on the applicant.

21The affidavit further notes the passage from the Reconsideration Decision that the applicant was unaware of, as set out above, regarding the reason for withdrawal of the sexual assault and sexual interference charges. That information had not been disclosed to him. The affidavit also lists four documents that were considered by Inspector Smith when making the Reconsideration Decision but had not been disclosed to the applicant. Lastly, the affidavit attaches an information that relates to three of the four charges in the vulnerable sector check.

22There are exceptions to the general rule that the evidence before the court on judicial review is limited to the record that was before the decision-maker. Two of those exceptions apply here. Evidence may be admissible to set out general background that would assist the court, and evidence may be admissible to show procedural defects that are not apparent from the record of proceedings.

23The affidavit evidence about what was, and was not, disclosed to the applicant falls within the exceptions and is admitted, as is the general background about the applicant’s employment application. That evidence is found in paragraphs 2, 3, 5, 11-12. Paragraphs 7 and 8 contain information already in the record. Paragraph 13 is not the subject of an objection. The rest of the proposed evidence is not permitted because it is essentially an attempt to improve the factual matrix, which is not permitted: Henri v. Canada (Attorney General), 2014 FC 1141, at para. 21, aff’d 2016 FCA 38, leave to appeal refused, 2016 60501 (S.C.C.).

Issues

24This application for judicial review raises the following issues:

(i) whether the applicant was denied procedural fairness; and,

(ii) whether the Reconsideration Decision was unreasonable because the test for disclosure, as set out in s. 10 of the PRCRA, was not met.

25There is no standard of review with respect to issue (i) regarding procedural fairness. The requirements of procedural fairness must be met. It is agreed that the standard of review for issue (ii) is reasonableness.

Procedural fairness issues

26The applicant submits that the respondent failed to meet its duty of procedural fairness in two ways:

(a) by failing to disclose the information needed for the applicant to fairly participate in the reconsideration process; and,

(b) because the process that was followed gave rise to a reasonable apprehension of bias.

Disclosure of information

27The applicant submits that he was denied the right to know the case he had to meet in advance of submitting his written request for reconsideration. His written submissions were therefore based on incomplete information and he did not learn of some of the information important to the Reconsideration Decision until he received the decision itself.

28The applicant does not submit that there should be the equivalent of Crown disclosure in this process. He agrees that there should be a streamlined process. However, the applicant notes that when a reconsideration is requested, the respondent already has the information that was collected for the initial decision to release non-conviction information. He therefore submits that it would be simple to make that information available to him for the reconsideration.

29The respondent emphasizes the streamlined nature of the process and submits that the necessary procedure is set out in the legislation and regulations and no more is required. The respondent further submits that a reconsideration decision is not a judicial or quasi judicial decision and requires a low level of procedural fairness.

30There is no dispute about the law on procedural fairness, which begins with the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. Inspector Smith was obliged to act fairly. The content of that duty of procedural fairness depends on the five Baker factors, as set out in paras. 20 and 23-27 of that case.

31Some of the Baker factors support the streamlined process that both parties agree is required, specifically the nature of the statutory scheme and the choices of procedure made by the decision maker.

32There is no question that the reconsideration process is intended to be streamlined. Subsection 10(4) of the PRCRA allows only 30 days to complete the reconsideration, which does not suggest that there should be an elaborate disclosure process. Further, there is no oral hearing. The legislation permits participation by written submissions only. And to be useful as part of the process of seeking employment, the decision must be relatively prompt.

33The respondent suggests that the legislative regime limits the information to be provided for the reconsideration, relying on s. 10(3). However, s. 10(3) only sets out the information that must be included in the initial decision, which is very limited and was provided to the applicant. It provides the police record check provider “shall ensure that the record contains the definition of “non-conviction information” found in [the PRCRA] and that the information is clearly identified as such.” That subsection does not limit the information that can be provided for the reconsideration.

34The remaining Baker factors support the applicant’s position that he should have been given more information before making his submissions in the reconsideration process. The decision is important, given the potential impact of a decision to disclose non-conviction information on employment prospects. There are participatory rights, specifically the right to make written submissions and the right to put forward documents that may support the request for reconsideration. People requesting a reconsideration would have a legitimate expectation that their opportunity to make written submissions would be meaningful, knowing the case that they had to meet.

35The unfairness in this case is underscored by the applicant’s own written submissions. At the reconsideration stage, those submissions could not address the unknown, and as it turned out, an undisclosed fact was a key fact noted in the reconsideration. In oral submissions before us, counsel noted that there was also other evidence that could have been put forward on the reconsideration had the applicant known the case he had to meet.

36The applicant also relies on the decision of this court in C.M. v York Regional Police, 2019 ONSC 7220, based on a disclosure process that pre-dated the PRCRA. In that case, the reconsideration decision was partly based on undisclosed information about the applicant that had not been the subject of any criminal charges. The court held that there ought to have been disclosure of three occurrence reports that had been considered in the reconsideration process and ordered a new reconsideration.

37The respondent submits that C.M. is distinguishable. To some extent that is so, but the conclusion at para. 37 applies equally here – the applicant has the right to know the case that he has to meet in order to make his written submissions and participate in a fair and meaningful way in the decision-making process.

38Bearing in mind all of the Baker factors, we find that a fair process requires disclosure of the case the applicant has to meet. The applicant should have had access to the relevant information before he had to provide his written submissions on the reconsideration. It was a breach of procedural fairness not to provide that access.

39This disclosure obligation need not impair the streamlined nature of the process. Section 1 of O. Reg 348/18 already requires that the applicant be given notice of the reconsideration process when the initial decision is given, as follows:

If an individual’s own non-conviction information is disclosed to that individual, the record must include or have attached to it information about the reconsideration process, including,

(a) how the process works;

(b) how and when to make a request for reconsideration; and

(c) how and when to make written submissions.

40As part of the above obligation to describe how the process works, the respondent would indicate how to obtain the relevant information to inform the respondent’s written submissions.

41There are no doubt different approaches that the respondent could take to provide access to the relevant information. For example, a copy of the “Exceptional Disclosure Assessment” form, which would have already been completed, could be provided if it included the relevant information. For another example, the documentation collected for the initial decision could be copied and sent out on request. If more relevant information was obtained on the reconsideration, more disclosure may be required. Redactions may be needed. These are just examples. It is for the respondent to provide a new process that is fair. We emphasize, however, that the process should be streamlined and does not require the sort of full disclosure that would be required in a criminal prosecution.

Bias

42The applicant submits that there was a reasonable apprehension of bias because persons involved in the investigation expressed their view that the applicant should not be entitled to a clean vulnerable sector check. More specifically, the applicant relies on emails discussing the imposition of a new peace bond and a request for an opinion about whether the respondent could add anything on CPIC¹ about the applicant.

43There is a reasonable apprehension of bias when an informed person, viewing the matter realistically and practically – and having thought the matter through – would probably conclude that the matter was not decided fairly: Baker, at para. 46.

44This test requires objectivity in two respects – the allegation of bias is viewed from the perspective of a reasonable person and the alleged bias must also be reasonable given the circumstances of the case: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 111.

45Further, the grounds for the apprehension of bias must be substantial: Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 395.

46The applicant relies on emails between police officers who were responding to inquiries by Assistant Co-ordinator Fusco, the person in the Records Search Unit responding to the Vulnerable Persons Check. The record shows that it was not his intention to obtain information on how to “flag” A.S. on CPIC or precipitate a discussion about another peace bond. He was making inquiries of officers who were involved in the charges. In response to emails he received, Fusco noted that his requests related to a vulnerable sector check and apologized if his original request was misunderstood. However, he did say that seeing the emails reinforced a public safety concern regarding A.S. working with children. As for the inquiry of the Crown Attorney, it does not express concern.

47The question is therefore whether these communications, presumably reviewed by Inspector Smith on the reconsideration, give rise to a reasonable apprehension of bias. Considering them in context, they do not. It is apparent from the reasons for decision of Inspector Smith that her decision was founded on the underlying factual record, not on concerns or opinions expressed in the course of the investigation. Further, s. 3(d) of the regulation requires that the if the police record check provider is a member of a police force designated by a chief of police for the purposes of the Act, that person must consult with at least three other members of the police force, including with at least one member who is senior to the police record check provider. This provides a safeguard against bias. An informed person, viewing the matter realistically and practically, would not conclude that Inspector Smith decided the matter unfairly.

Whether the Reconsideration Decision is unreasonable

48The applicant submits that tests for exceptional disclosure of non-conviction information, as set out in s. 10(2) of the PRCRA, cannot be met in this case. Subsection 10(2) has three requirements, which are as follows:

The criminal charge to which the information relates is for an offence specified in the regulations made under subsection 22 (2) (c).

The alleged victim was a child or a vulnerable person.

After reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following:

i. Whether the individual appears to have targeted a child or a vulnerable person.

ii. Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.

iii. When the incident or behaviour occurred.

iv. The number of incidents.

v. The reason the incident or behaviour did not lead to a conviction.

vi. Any other prescribed considerations.

49There is no issue that the first requirement in s. 10(2) is met. The four criminal charges are all offences that are specified in the regulations. The issues raised by the applicant relate to the second and third requirements.

50The applicant submits that the second requirement – that the alleged victim is a child or vulnerable person – should be narrowly interpreted given the impact of the disclosure of non-conviction information.

51The applicant submits that the phrase “alleged child or vulnerable person” in the second requirement of s. 10(2) is a back-reference to the charge document itself. In the two harassment charge documents, only the mothers are listed as victims, not the children. The applicant submits that it is insufficient if the charge is regarding conduct about a child, as was the case here.

52The applicant therefore submits that the alleged victim was a child or vulnerable person for only two of the four charges (and it was the same child). The applicant therefore submits that the other two charges should not be disclosed in the vulnerable sector check in any event.

53The respondent focuses on the other objective of the legislation, to have safe communities and protect children and other vulnerable persons. Children were targeted in the conduct giving rise to all four charges, including the two harassment charges.

54For the 2015 charge of criminal harassment, the alleged conduct involved emails, voicemails, and other contact with the mother, in which the applicant said he wanted to meet with and do activities with the mother and her son. He sent emails that set out his infatuation with the child. The mother and child did not otherwise know the applicant. The 2018 charge of harassing communications involved the family of the six-year-old girl who was named as the victim in the 2018 sexual assault and sexual interference charges. They did know the applicant. The harassing communications charge also involved two older boys in the family. It was alleged that the applicant would call and text the mother about the children saying that he loved them, even after he was asked to stop, among other allegations.

55The term “victim” is not defined in the PRCRA. The use of the word “alleged” before “child or vulnerable person” in s. 10(2) 2 need not be a back-reference to the charging document. The language acknowledges that the charges were not proven, consistent with the context of s. 10(2), which relates to non-conviction information.

56Inspector Smith concluded that at least one of the alleged targeted victims, in each charge, was a child or vulnerable person. Bearing in mind the purpose of the PRCRA to protect children and other vulnerable people, we do not find that the interpretation used by Inspector Smith was unreasonable.

57There is then the third requirement – reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child, considering various factors. The arguments raised on this requirement overlap with the areas in which the applicant was denied procedural fairness. Because of that breach of procedural fairness, the applicant did not have a full opportunity to make submissions and provide documents to be considered by Inspector Smith.

58As a result, it cannot be assumed that Inspector Smith had, before her, all the information that should have been considered to address the third requirement. In turn, the reasonableness of her decision should not be assessed at this stage. Instead, the reconsideration process must be done again.

Orders

59This application is granted, the Reconsideration Decision is quashed, and the reconsideration process shall begin again and be addressed by a different decision-maker. The applicant shall submit a new request for reconsideration within 45 days from today and may therefore include fresh submissions and documents based on the record now known to him.

60The respondent shall pay the applicant costs of $11,635, all inclusive, within 30 days from today.

Justice W. Matheson

I agree _______________________________

Justice D.L. Corbett

I agree _______________________________

Justice F. Kristjanson

Released: January 11, 2022