Issue on review involved the Winnipeg Police Service’s new practice of including non-conviction information on criminal record checks in exceptional circumstances. Court of Appeal returned matter to Queen’s Bench for fresh hearing due to ambiguities in the record before the application judge.

Administrative law – Judicial review – Applications – Appeals – Procedural requirements and fairness – Remedies – Declaratory relief – Police – Criminal records request

Kalo v. Winnipeg (City) Police Service, [2019] M.J. No. 106, 2019 MBCA 46, Manitoba Court of Appeal, April 29, 2019, F.M. Steel, W.J. Burnett and K.I. Simonsen JJ.A.

A prospective employer required Mr. Kalo to obtain a criminal record check as part of his application for a bus driver job. The Winnipeg Police Service was implementing a new process for checks in accordance with WPS’s Standard Operating Guidelines: Police Record Checks (SOGs), which involved an exceptional disclosure assessment to consider non-conviction information and whether it should be disclosed in a check for a particular position. The SOGs indicated checks may include non-conviction information such as stayed charges in exceptional circumstances. In this case, Mr. Kalo was applying for a position that would involve working with vulnerable persons, and had sexual assault and interference charges involving a child from 2009 which had been stayed after he entered into a peace bond. The WPS determined the SOG criteria were met and disclosed these non-conviction offences as part of Mr. Kalo’s check.

Mr. Kalo sought declaratory relief by way of a notice of application as a result of the inclusion of this supplementary information in his check. He asked for a declaration that he was entitled to receive a clear check and that the inclusion of the supplementary information violated his Charter rights. The application judge said he could not give Mr. Kalo what he was looking for by way of declaratory relief, and would instead continue the application in the form of a judicial review. The WPS did not object to this or ask for an adjournment or file any additional material. The judge did not consider the standard of review, and only addressed the issue of procedural fairness, finding the WPS procedure was unfair. He ordered that WPS conduct an in-person hearing within 30 days.

On appeal, the Court of Appeal found it was not possible to determine with certainty what the record was in front of the application judge, and was not satisfied the record was complete so as to allow for the judicial review process to be properly undertaken, including an analysis of the WPS’s procedure and their legislative authority. Given the confusion about the record (the clarity of which is of paramount importance in judicial reviews) and the important systemic and public interest issues raised by Mr. Kalo’s application, the Court of Appeal allowed the appeal to the extent that the matter was referred back to the Queen’s Bench for a fresh hearing before a different judge, on a proper record.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at khill@harpergrey.com.

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