Many regulators require applicants for registration (and sometimes even current registrants) to obtain a police check to ensure their suitability to practise the profession. A recent court decision raises important issues about such requirements and the process for obtaining them: Khorsand v. Toronto Police Services Board, 2023 ONSC 1270 (CanLII).
In that case, an applicant applied for a position as a Special Constable to work for Toronto Community Housing. A successful security check with the Toronto Police Services Board (TPSB) was required. The applicant was denied clearance. He was not given reasons for the decision or the information upon which the decision was based.
The Court held that there was a sufficiently public aspect to this decision that it was subject to judicial review. The entities involved (i.e., Community Housing and the TPSB) serve public interest purposes. While the facts of this case are different than for applicants for registration with a statutory regulatory body, it is quite possible that a refusal of registration by an applicant because of an unsatisfactory police check would also be subject to judicial review. A significant factor in this case was concern that racialized people are “highly over-represented” in police contacts. A freedom of information request indicated that the applicant had extensive contact with the police that raised no concerns about his conduct, but which mentioned his racialized status repeatedly. The Court said: “This raises serious questions about what information was relied on in coming to the conclusion that he failed his background check and how systemic issues may have informed and affected the TPSB’s decision-making on this issue.”
Another comment by the Court may also be applicable to regulators:
The decision at issue affects not only [the applicant]’s rights. It also affects the public’s right to have confidence in the agencies who administer law enforcement in the community and to have those agencies made up of people who are representative of the communities they serve.
The Court concluded that procedural fairness was required in the circumstances:
Weighing all of these factors and the circumstances surrounding the decision at issue, I find that the TPSB breached its minimal duty of procedural fairness, which was (1) to give [the applicant] notice of the reasons why he failed his pre screen background check and copies of the information it was relying on making that decision (subject to a process to protect sensitive law enforcement information) and (2) an opportunity to dispute those reasons and information. Because the decision at issue was a pre screen decision, to comply with its duty of procedural fairness the TPSB must provide [the applicant] with the reasons why he failed his background check and a copy of the information relied upon to justify that failure.
While the decision applied to the TPSB, regulators requiring police checks are also likely to be affected by these considerations.