Access to Information
A recent 2019 decision from Alberta’s Court of Queen’s Bench, Edmonton Police Service (EPS) v Alberta, considered the information available in police record checks. At issue was when and what information police can share with employers. The complainant, AB, claimed that a public body, the Edmonton Police Service (EPS), had unfairly accessed his personal information. This information was then shared with AB’s employer which resulted in AB losing his job.
Employers will sometimes ask potential employees to agree to a background check. The laws regulating police checks differ from province to province. These laws impact the kind of information police can share. The Freedom of Information and Protection of Privacy Act controls access to information in Alberta. The Court found that the current legislation does not adequately regulate the information police can share. The results demonstrate that the Government of Alberta needs to do more to protect the privacy of Albertans.
Criminal Record Checks versus Vulnerable Sector Checks and Police Information Checks
There are three types of record checks employers request: A criminal record check, a Vulnerable Sector Check (VSC), and a Police Information Check (PIC). A criminal record check is the least invasive search. Criminal record checks typically only show convictions that have not been pardoned. These checks do not disclose convictions when the client has received a conditional or absolute discharge.
Vulnerable Sector Checks
A Vulnerable Sector Check contains more information than a standard criminal record check. Employment and volunteer positions involving vulnerable people require Vulnerable Sector Checks. VSC’s began in 2000 through section 6.3(3) of the Criminal Records Act to protect vulnerable groups from potential predators. Organizations can request VSC’s from employees as a condition of employment. Some professions require VSC’s by law. For example, teachers, nurses, and social workers are required to submit to a Vulnerable Sector Check. A VSC will not include complaints not prosecuted and will not include youth matters if the record has been sealed. A VSC will, however, show a sexual offence conviction even if the court has granted a pardon.
Police Information Checks
A Police Information Check contains more detail than either a criminal record check or a Vulnerable Sector Check. Unlike a VSC, a PIC can include all information police may have gathered. Examples include youth convictions, unproven allegations, and mental health calls. Provincial governments can regulate the information contained in PIC or VSC. If governments do not regulate this information, disclosure is subject to police discretion.
In Canada, the RCMP complete criminal record checks. Meanwhile, local police departments complete VSC’s and PSC’s. Employers need written consent to request any type of record check. An employer cannot request a check without your knowledge or permission.
Edmonton Police Service v Alberta
This case arose from the Office of the Information and Privacy Commissioner (OIPC) about a complaint made by a former youth worker against the Edmonton Police Service. The youth worker, AB, argued that EPS has wrongfully disclosed information costing him his job.
AB had worked in the vulnerable sector for over a decade. As part of this employment, AB had previously submitted a criminal record check. This criminal record check showed no criminal convictions. Police were called to AB’s workplace to respond to a violent youth. The police met interviewed AB at this time. Following this interaction, a police officer decided to run AB’s name through the system. The officer ran this check on AB even though he was not under investigation. EPS had no reason to suspect AB of any wrongdoing. The police check uncovered that AB had previously conviction as a youth. The police also discovered that other people had complained about AB, but these complaints had never been prosecuted.The officer disclosed this information to AB’s employer. EPS advised the employer to request more detailed checks. The officer knew that a PIC would reveal AB’s youth conviction and accusations that hadn’t resulted in charges. The employer told AB that they had received information about previous sexual assault allegations. Based on this information, the employer demanded additional information checks. AB felt he had no choice but to sign a consent form agreeing to the additional information checks. AB was terminated from his employment. AB challenged the grounds of his termination. During a work arbitration, AB discovered that EPS disclosed the initial information without his knowledge or consent.
On review of the Adjudicator’s decision, Justice Graesser found that EPS has erred in disclosing information to AB’s employer. Furthermore, the Court found that EPS should not have disclosed all the information they shared in the PIC and the VSC. Justice Graesse wrote:
The information included in the PIC and VSC, despite the “relevance check” contained personal opinions based on speculation and disrespect for both the legal system and the presumption of innocence. Hunches, rumours, gossip and unsubstantiated hearsay may have a legitimate role in police investigations, but they have no place in passing such information on to third parties.
The Government of Alberta does not regulate information in VSC’s and PIC’s. The information unfairly disclosed by police caused AB long-lasting harm. As a result of wrongful disclosure, AB was mistakenly labelled as a sexual predator. Due to the nature of AB’s work, he found it hard to find another job.Although AB has signed a consent form, the Court found that AB had not meaningfully consented to the disclosure. The consent form referred to “police files,” which does not say anything about the kind of information they could release. Consent must be informed. The imprecision of the consent form made meaningful consent impossible.
Police Checks in Other Provinces
The problem of police access to information is not limited to Alberta. Other provinces, including Ontario, have passed legislation to better protect their citizen’s privacy. In 2018, Ontario made changes to its criminal check law. The Police Record Checks Reform Act restricts the information police can release. In particular, the new law restricts police from releasing information other than convictions. This law clarifies the information police can release. Ontario’s legislation also indicates how long police will hold onto information before it no longer shows on a record check. Justice Graesser referred to Ontario’s legislation in his decision. The Justice remarked that until Alberta adopts similar laws, employees are at the whim of police about the information disclosed.
Why Is This Important?
This decision highlights the limitations of the Freedom of Information and Protection of Privacy Act. In its current form, this act is unable to protect Albertans from unfair disclosure. Police power to release information on suspicions, unproven allegations and non-convictions contradicts the presumption of innocence. Every person has a right to the presumption of innocence until proven guilty in a court of law. This right is confirmed in section 11 of the Canadian Charter. Discriminating against people based on unproven allegations violates human rights. Vulnerable Sector Checks play an important role in protecting the public. However, we must balance this power police against personal privacy rights.
Know Your Rights
It is important to understand what to expect when an employer asks for a record check. If an employer requests a record check, make sure you know the type of check requested. You should also know what kind of information police can disclose. More information on the difference between criminal record checks, VSC’s and PIC’s are available here. If you are unsure about the information employers can request or what police may disclose, contact your solicitor.