Required to provide fingerprints to keep coaching, Calgary man sues police, feds
A Calgary man says he was forced to provide his fingerprints or give up a 12-year career of coaching youth hockey, all because he shares the same date of birth as a pardoned sex offender.
And after a fruitless five-year odyssey for an explanation for what he feels is a violation of his constitutionally protected Charter rights, retired oil engineer Jim Besse is now suing the RCMP, Calgary police, the Calgary police commission and Chief Roger Chaffin.
“I have always been upfront, saying, ‘Take five minutes and tell me why you think this is a reasonable search and I will go away.’ For five years, nobody’s been able to take that five minutes,” Besse told Postmedia.
“They weren’t going to issue a clean criminal record check for myself unless I submitted myself for fingerprints, and that is still the policy.”
For more than a decade, Besse had served as a dedicated volunteer as his two sons grew up, serving as a minor hockey head coach, a leader with their Beavers and Cubs troops, and at schools. Over that time, he estimates successfully being screened eight to 10 times through a vulnerable sector search, necessary for adults working with children to ensure there are no red flags on their records.
But in 2012, the 63-year-old retiree filed his latest criminal check for Calgary ’s Recreational Hockey League, a process that had by then become relatively routine. This time, however, he received a letter from police that simply said he was required to provide “additional information” for his vulnerable sector search.
After several inquiries about the opaque order, he finally got to the bottom of it.
“Pulling informational teeth, it comes out that I have to be fingerprinted because I have a common date of birth with one of 16,000 pardoned sex offenders,” said Besse, who ultimately provided his fingerprints as he was offered no choice if he wanted to keep coaching.
“I’m not here to pick fights with the Calgary police or the federal government. It’s a principle thing — I think they ’re breaking the law, big time.
“And if it’s an illegal search for me, it’s an illegal search for ... thousands of Canadians across the country who’ve also been subjected to this fingerprinting. This is a huge Charter violation.”
Under Section 8 of the Canadian Charter of Rights and Freedoms, citizens are protected from “unreasonable search or seizure,” which B es se argues was violated in his case, as well as countless others, many of whom may not have questioned the more intrusive screening.
In 2010, under then-justice minister Vic Toews, a ministerial directive was issued that bolstered safeguards against pardoned sex offenders who may change their names, requiring any vulnerable sector search applicants who matched two of three shared criteria of a pardoned sex offender — name, sex or date of birth — to provide fingerprints.
A statement from RCMP national headquarters said the use of biometrics is the only way to ensure pardoned sex offenders can’t adopt new identities and fall through safety nets designed to prevent them from accessing children.
“The use of fingerprints ensures that individuals who legally change their name will not be able to conceal criminal histories and also eliminates the possibility of individuals being wrongly associated with another persons’ criminal history,” said the statement.
“Once the search has been conducted, the authority to retain the fingerprints no longer exists and they are destroyed. “
It goes on to say fingerprints will be required from anyone doing a vulnerable sector search or criminal record search in the future.
“The RCMP is aligned with the current Ministerial Directive in supporting that once its criminal records systems are fully automated, fingerprints will be required for all criminal record and vulnerable sector check verifications.”
It’s an issue that’s been on the radar of the B.C. Civil Liberties Association for years, said policy director Micheal Vonn, and while they’ve heard from many people swept up by the policy, it’s believed many others have also kept it to themselves, fearful that they may be looked upon differently if others discover they’ve been singled out for extra attention from law enforcement.
“In some cases, people who’ve been working in the same place for 20 years now have to prove who they are,” she said. “We are getting a lot of complaints and we have every reason to believe this is just the tip of the iceberg.
“It’s a process that, frankly, is just prejudicial — if you’re providing your biometric data, there has to be an awfully good reason.”
While the RCMP insists the fingerprints are destroyed following verification, Vonn said there are no checks and balances to ensure the information is not being misused.
In a statement, Calgary police said their only role is to administer the checks on behalf of the federal law enforcement agency.
“The policy of the Calgary Police Service with respect to a vulnerable sector check is that if CPS is requested to perform a VSC (vulnerable sector check) by a third party, we are obliged to comply with federal legislation, being the Criminal Records Act as well as RCMP policy and procedures, to carry out such a search,” it read.
“CPS has no jurisdiction or discretion to deviate from those requirements. Further information on federal policy/procedures/ legislation regarding VSCs should be directed to the Attorney General of Canada.”
A statement of defence for Canada’s attorney general, obtained by Postmedia, argues neither the RCMP nor the ministry had any involvement in Besse’s criminal record check, suggesting vulnerable sector searches are conducted by local police services.
“In some circumstances, a namebased verification may be inconclusive as to the existence of a pardoned sex offence or criminal record, in which case the police agency is to undertake a fingerprint-based verification in compliance with RCMP CPIC (Canadian Police Information Centre) policy,” reads the legal filing.
“The RCMP CPIC policy is reasonable, consistent with the Charter and not in any manner unconstitutional. There is no federal legislation or regulation requiring that the plaintiff be fingerprinted and therefore no federal legislative action that could be found unconstitutional in this claim.”
The statement of defence goes on to declare the lawsuit “frivolous” and “an abuse of process.”
Besse, who has spent an estimated $30,000 on the legal dispute, said after exhausting all other avenues for a resolution, he had no choice but to take it before the courts.
“We’re going for a declarative judgment. Right now, we’re not trying to determine culpability or responsibility, we’re trying to determine legality of the search — is it Section 8 Charter compliant?” said Besse, who isn’t seeking a monetary award beyond covering his legal fees should he win.
“Neither of them will take responsibility for the action, that’s why we’re going to a judge.”
The matter is scheduled to be heard in Court of Queen’s Bench on April 10, where a judge is expected to hear a motion from the federal government calling for them to be dismissed from the lawsuit, arguing that an Alberta court doesn’t have the judicial authority to rule on a federal body.
Weare getting a lot of complaints and we have every reason to believe this is just the tip of the iceberg.