Bringing fairness to police checks
For people who aspire to work as a police officer, special constable or similar jobs, a police background check is part of the hiring process. Given the nature of the work, such checks are an important part of vetting candidates.
Yet individuals deemed to have “failed” these checks too often fall into a Kafkaesque world, denied answers about what exactly in their background prompted the decision and denied recourse to challenge the finding or correct mistakes.
That is the situation that confronted Yazdan Khorsand, after failing a background check done by the Toronto police that scuttled his dreams of working in law enforcement.
He’s not alone. As the Star’s Jim Rankin has chronicled, others have frustratingly found their career aspirations cut short after failing the background checks and run into the same wall when they went looking for answers.
These background checks go beyond what a member of the public would face in a police background check for, say, a teaching job. In this case, it’s a background investigation that goes far deeper.
Applicants who have been rejected are left to guess. Was it a long-ago speeding ticket? An interaction with the cops that was documented but never resulted in charges?
Pressed for a better response, police officials throw up an array of excuses. They claim that informing candidates of the reason for their rejection could compromise sensitive intelligence. Responding to such requests or allowing reviews and appeals would be an administrative burden.
Given the high stakes for the individuals involved, such excuses are not acceptable.
It was encouraging then to see Khorsand seek a judicial review of Toronto police’s refusal to share details of his case. In February 2023, a majority of a three-judge Divisional Court panel at Ontario’s Superior Court of Justice ruled that Khorsand was entitled to a judicial review of the failed check. The Toronto Police Services Board, the majority ruled, had “breached its minimal duty of procedural fairness” by not disclosing why he had failed and not giving him a chance to dispute the reason or reasons.
The Toronto police board and Toronto police appealed that decision. Now it is before the Court of Appeal for Ontario. It’s an important case that hopefully will assert fairness and transparency for those applying for these jobs and to push back against the excuses cited by police agencies.
The Mental Health Legal Committee, the HIV & AIDS Legal Clinic Ontario and ARCH Disability Law Centre are intervenors. In their submission on the case, they note that police play a “unique triple role” in this process. “They are the custodians and gatekeepers of the information, and also decide the outcome of the investigation,” they stated in their submission.
“The unfettered discretion inherent in police background investigations and the opacity of the decision-making process give rise to the spectre of discrimination,” their factum stated.
The organizations argue for safeguards to ensure “robust” procedural fairness rightly noting that these police checks form a barrier to employment.
The police argue against opening the door to more disclosures or appeals. In its submission, the Canadian Association of Chiefs of Police speaks about the need to protect intelligence information such as ongoing investigations, investigative techniques and confidential informants, that may be a factor in such checks.
Why then are some police agencies and organizations able to provide explanations for recommending a failed check? Khorsand’s submission cites the case of airport workers dismissed for failing the necessary Transport Canada security clearance. They have the right to be informed of the reasons they failed and an opportunity to respond, even appeal such rulings, the submission notes.
Clearly the status quo is not acceptable when an individual’s career dreams are derailed because of the outcome of a murky background check that is then kept under wraps.
There must be a middle ground that doesn’t compromise police intelligence yet can still permit disclosures to give a candidate a good sense of why they failed. And it must allow for reviews when there’s evidence the failure was the result of incorrect information. As to the police argument this is all too burdensome, surely that is overruled by the imperative to ensure a fair process.
Police services should not wait for a court ruling to do the right thing. They can start the work now to make their background checks fairer and more transparent.