Non-criminal police interactions may have cost a racialized Canadian the opportunity to pursue employment with the Toronto Community Housing Corporation (TCHC) as a special constable. The applicant, described as “Middle Eastern” and “Brown” by police officers in general occurrence reports, saw the dispute get escalated to Ontario’s Court of Appeal after the Divisional Court sided with him that he deserved to be provided answers as to why he had an unsatisfactory background check. However, the Court of Appeal, Ontario’s top court, overruled the lower court regarding the judicial review of the screening decision made by the Toronto Police Service (TPS) – perhaps to avoid opening a can of worms with similar requests that could burden other public bodies.
What further complicates this case is the fact that this racialized Canadian had previously worked as a special constable with the TCHC before leaving to pursue another employment opportunity with Metrolinx as a peace officer. However, an unsatisfactory background check lost him that job. A subsequent background check, this time to become a police officer with the TPS, resulted in another unsatisfactory score. Then, after reapplying to return to his old job as a special constable, a process that also required that he pass a background check, he was told that he failed the pre-screening process, and was provided no answers as to why. After applying for a Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) with the TPS to get answers, he received partial records that detailed nine interactions between him and the TPS, all non-criminal interactions.
How Ontario’s top court has attempted to justify their legal thinking in this case is likely to further legitimize the grievances that many racialized Canadians have as it relates to systemic discrimination and how the institution of policing works against the interests of racialized Canadians. Because it seems a person without a criminal history can be denied a career in policing stemming from non-criminal interactions with them, while police officers can sometimes commit crimes and still keep their jobs—that is the silent precedent that was set here.
An Overview of “Khorsand v. Toronto Police Service Board”
At the Divisional Court level, the three-judge panel ruled 2 to 1 in favor of the racialized Canadian, Khorsand. The majority opinion agreed that Khorsand should be afforded the right to pursue a judicial review because the decision was sufficiently public in nature due to the statutory powers involved and the potential for systemic discrimination in policing. The majority opinion also expressed concern about the unregulated use of police records and the risk of perpetuating systemic discrimination, and that the Toronto Police Service Board (TPSB) breached its duty of fairness by not giving the respondent the reasons for his failed pre-screening or the information used to make the decision. The dissenting opinion described the matter as a private employment-related decision and thus not subject to judicial review, noting that there was a need to protect sensitive law enforcement information and there was a concern about the precedent leading to similar requests that could burden other public bodies.
At the Court of Appeal, the three-judge panel disagreed with the Divisional Court, unanimously overruling it and opining that the TPS pre-screening decision was not subject to a judicial review because it was part of the TCHC’s (private) hiring process. So, the TPSB was no longer required to detail the reasons for arriving at the decision, disclosing the information it relied upon to make the decision, or to offer the applicant the ability to dispute those reasons and information. They also opined that hiring decisions, even when made by public bodies, did not meet the standard of public law principles to justify a judicial review. However, the most telling remarks referenced systemic discrimination; although preventing systemic discrimination was important, allowing public law remedies in this context could compromise the integrity of background investigations, particularly the protection of sensitive law enforcement information.
As such, it seems Ontario’s top court has placed a greater importance on preserving structural inequities related to background checks within the institution of policing over a racialized Canadian’s request to get answers as to why his job application was denied. There also seems to be a disregard of how many public bodies (not courts) that make decisions, which sometimes resemble court decisions, can have those decisions appealed. And if that public body lacks its own appeal system, then “judicial reviews” may be afforded to those looking to dispute the merits of that decision.
Whatever the standard of thinking that was applied by the three-judge panel, it seems low if we consider that a greater focus seemed to be placed on preserving an outdated public administration practice that systemically discriminates against racialized Canadians. This would be a weird standard to set considering that committing a crime as a police officer may not result in that officer losing their job, but a person without any criminal history can be denied a career in policing due to an unsatisfactory and non-transparent “background check” where what makes it unsatisfactory may never be disclosed.
An Argument Lacking Context and Clarity.
The argument made by the TPSB, which swayed Ontario’s top court, explained that the TPS are unable to disclose information received from other police services or agencies as some of the information may contain highly confidential and sensitive information about third parties, compromise law enforcement techniques and procedures, put third parties at risk, and expose how background checks are conducted and so allow people to fake information that policing agencies review. But what seems to be absent from this vague explanation, in something as complicated as policing, are the nuances and context. Because nuances are important, and context is key.
So, where do the nuances lay and what is the context that is missing? Let us begin with the realization that when someone discusses a “background check”, not all background checks are the same. A federal police officer working on national security matters and with international security partners is going to have to go through a far deeper and multi-layered “background check” compared to special constable who is solely responsible for patrolling community housing areas. In addition, background investigations can only occur in so many ways, all of which have been detailed to some extent and are available in the public domain.
Perhaps the million-dollar question in all of this is whether the three-judge panel at Ontario’s top court was exhibiting a standard of legal thinking more equivalent to the dial-up era of the internet rather than today’s “generative artificial intelligence” times. The current process sees the lowest level of policing (municipal) serve as both the custodians and gatekeepers of information and as arbiters of the outcome of a background check. But an institutional process that is high functioning and sound would not be vulnerable as a result of something as menial as a judicial review of an outcome, and no institutional process should be too burdensome to reform if it is making bad decisions on behalf of government and when those “wrongs” will forever change the life trajectory of any number of Canadians.
The Common Hypocricy
Seeing how the TPS is the sole arbiter behind background checks, it is worth examining the example being set by TPS officers who have met the high standard required to receive satisfactory background checks. At a recent misconduct hearing stemming from a 2022 incident for a TPS police inspector who intervened in a police investigation after receiving a call from her family member who crashed his parent’s car while driving drunk on a G2 license. After receiving the call, the police inspector called dispatch and instructed them regarding who would be assigned to the crime scene – an officer otherwise assigned to a different division, and who sent the teenager home from the scene of the crash. The teenage driver was initially told by some officers that he was lucky for his family’s connection to police, while another officer at the misconduct hearing described the police inspector’s actions as obstructing an investigation
Most racialized Canadians, on the other hand, are aware of the reality that if they apply to work in any field that requires even the slightest of “policing responsibilities”, even with no criminal history, they may end up receiving unsatisfactory background checks. The City of Toronto seems to be a hotbed for such situations, as well as Metrolinx, where two other racialized Canadians who worked as safety dispatchers lost their jobs because of unsatisfactory background checks. These two youth, whose parents were newcomers to Canada and who grew up in Toronto’s poorer neighbourhoods, did what their parents told them: stay out of trouble and study hard so you can get good jobs. Neither of them had criminal records, but they failed to satisfy a background check, and they were never told why. Then, they filed a human rights case, which was settled in a private arrangement.
Courts are Not Inclusive
Why should someone who fails to satisfy a background check related to entry-level police work not be able to know the generals of that background check, especially if they had no criminal history and were still denied? Because the courts say so. And why do Ontario’s top judges seem more concerned about “large-scale” implications for the institution of policing if they opine that the background check process systemically discriminates against some members of Canadian society? Because the courts have always been gatekeepers of the status quo, and never the driving force behind a more equitable society.
If our desire for a more equitable society had solely been dependent on Canada’s courts passing forward-thinking legislation, today’s Canada might resemble a dystopia along the lines of The Handmaid’s Tale. Many historic moments that led towards the creation of Canada’s Charter of Rights and Freedoms are unlikely to have occurred—and Canada’s most important national symbol might not exist. Because the Courts have never been responsible for being the driving force behind advancing rights and freedoms. They have only been relied upon to enforce the status quo until those precedents became unacceptable and Canadians no longer tolerate them.
Women’s suffrage movements would likely still exist, as many of the rights enjoyed by today’s women would not have been afforded to them in that dystopia. Racialized Canadians would likely still be experiencing “Viola Desmond” treatment in that dystopia. Residential schools would likely still be considered as a good thinking in that dystopia, “When the school is on the reserve, the child lives with its parents, who are savages: he is surrounded by savages, and though he may learn to read and write, his habits, and training and mode of thought are Indian. He is simply a savage who can read and write.” Many of us in that dystopia might even accept that standard of living, because the Courts embraced that thinking until it became unacceptable, and Canadians would no longer tolerate it. Thankfully for us, we have never looked to our Courts to be the catalysts for change and a more inclusive society.
Carding 2.0 Series Will Return
A few simple amendments to Ontario’s outdated legislation are all it would take to account for this discriminatory and inequitable process—a public administration issue. People would be mistaken to think that the provincial legislation introduced in Ontario in 2016 addressed the core issues related to the controversial practice of police carding individuals and carrying out random street checks. Instead, those original challenges have morphed into something more complicated, because within Ontario’s institution of policing, not all policies are drafted and grandfathered policies are verbal although acknowledged by municipal police services and Ontario’s provincial police.
Accounting for my own interactions with the Ottawa Police Service, where a handful of police officers attempted to criminalize me by filing two consecutive frivolous police reports that I was able to eventually squash, I realized that there were no formal mechanisms in place to dispute police narratives. So, at the start of 2024, I started an academically oriented investigative series (Ontario’s Institution of Policing – “Not All Internal Policies Are Drafted. Grandfathered Policies May Be Verbal.”) focusing on a public policy dive into the issue of “carding” and how legislative amendments never addressed the core issues involved with the practice of “carding”. It is an issue that stems from the inability to challenge and dispute the narratives of a police report, one that is ripe for exploitation by “bad apples”.
After identifying the exact area of the public policy issue (Applicable Standards Ontario Policing Standard: AI-007), getting key admissions from police stakeholders on the matter, learning that it was possible to challenge and dispute the contents of a police report, and that there was nothing formally drafted about it at any level of policing or in government, institutional stakeholders stopped responding. It was a series of events that is almost unimaginable, including a demand from one police service that I send them documents I had received from other police services before they would process my Freedom of Information request (Applicable Standards Ontario Policing Standard: AI-007). But the next part of that “Carding 2.0” series, which details the public policy shortfalls and institutional failings is coming soon. So stay tuned!