Toronto man wins right to challenge failed background check for special constable role

Two parked Toronto police vehicles. Photo: Felix MacLeod/Pexels

The Toronto Police Services Board (TPSB) has been ordered to tell an unsuccessful applicant for a special constable role why he failed a background check — and give him an opportunity to respond and dispute the information it relied on in coming to that decision.

YK applied for a job as a special constable with the Toronto Community Housing Corporation (TCHC) — he had already worked for TCHC in that role and was seeking to return.

As part of the application and screening process, he was required to pass a background check conducted by the Toronto Police Services Board (TPSB).

The TPSB reviews different sources of information, including police records, domestic and international background and security checks, financial information (including credit bureau checks) and driving records.

It conducted a prescreen background check on YK and found that, because he had recently failed a background investigation and there had been no material change in circumstances since then, there was no need to proceed.

As a result, TCHC advised YK he was not able to continue with his candidacy for the role of special constable.

Applicant asks for information on background check

YK wanted to know why he had been rejected, including the information and documentation relied on by TPSB in making its decision. Those requests were refused.

YK then turned to the courts for a resolution. The fundamental issue before the Ontario Superior Court of Justice was whether the decisions in this case are subject to judicial review.

The TPSB argued they were not — failing an applicant at the background screening phase fell with the private sphere and was not subject to any duty of procedural fairness. The power of TPSB to appoint special constables for TCHC is the subject of a private contract, it said.

The court disagreed. It said the decision by TPSB to fail YK “is a decision that is reached by public law and is a decision to which a pubic law remedy can be applied.”

“(YK) was entitled to notice of the reasons for his failure to pass the background check and was entitled to an opportunity to respond to those reasons,” it said.

The court noted that YK is a racialized individual who has never been charged with or convicted of a criminal offence.

“Certain communities are more heavily policed than others, resulting in more police interactions and more police records,” it said. “As the TPSB has recently recognized, systemic racism and discrimination exist across law enforcement institutions and race-based data can be misused by the TPSB.”

The background checks at issue are completely discretionary and entirely unregulated, the court said.

“There is a serious public interest in ensuring that the unregulated use of police records does not result in the perpetuation of systemic discrimination. The right to judicial review and the established principles of procedural fairness provide some protection against such a result,” it said.

YK’s background: Iran to Canada

YK immigrated to Canada from Iran in 2008, and became a Canadian citizen in 2013. Since 2015, he has had a desire to pursue a career in law enforcement.

He earned a diploma in Police Foundations from Trios College in Toronto, which he attended from 2015 to 2016. Trios named him Student Ambassador Leader of the Year.

In 2018, YK graduated with honours from the Basic Constable Training Program with the Control Institute, and he has also completed a number of courses with the Canadian Police Knowledge Network. He obtained the Ontario Association of Police Certificate, as well as the Stop the Bleed Certificate from the American College of Surgeons.

He also volunteered with Crime Stoppers and founded a community organization to support homeless people.

Working as a special constable

In March 2018, he began working for TCHC as a special constable. That role was conditional on him passing a background check with TPSB. In May 2018, he was advised he had passed that check.

He was appointed as special constable with TCHC for a five-year term under the Police Services Act on May 18, 2018.

Switch to Metrolinx

In September 2018, YK voluntarily left TCHC to take a special constable job at Metrolinx that paid more. That job was also conditional on him passing a background check and receiving a special constable designation.

On Feb. 19, 2019, his employment with Metrolinx was terminated because he failed a background check conducted by the Ontario Provincial Police (OPP).

In April 2019, he applied to join the Toronto Police Service as a special constable. As a result of this court case, YK discovered the reason for the unsuccessful application was the failure of a background check.

Application to TCHC

In 2019, just prior to the application with the Toronto Police Service, he also applied to rejoin TCHC in his old role as a special constable. In December 2019, he was told his application could not proceed because he had failed a background check conducted by TPSB.

In July 2020, he applied again to TCHC. In March 2021, he completed the interview and background assessment administered by TCHC. But his candidacy was, again, subject to a background check with TPSB.

In April 2021, he was told he had failed a pre-screen check conducted by TPSB.

Access to information request

In June 2021, YK submitted an access to information request to the Toronto Police Service. The following month, he received 66 pages of police records involving nine interactions with police.

None of these records disclosed any criminal behavior. Three of the nine incidents identified YK as “Persian”, “Middle Eastern” or “Brown.”

One incident report stated the following:

“Spotted in the woods with three other Persian males with what appeared to be an assault rifle in hands. The investigation revealed that the assault rifles were actualy (sic) a paintball rifles (sic). Males cautioned not to play panitball (sic) in public as this can cause people to call police for seeing person with guns.”

YK was described as “Middle Eastern,” wearing a goatee and multi-coloured camouflage pants. He was 18 at the time.

Other files related to an incident where he found a bullet lodged in glass at Trios, which he reported to police; an alleged assault causing bodily harm where he was a witness; motor vehicle collisions where he was not at fault; and a complaint concerning an assault with a weapon where he identified as a “pedestrian” and not the perpetrator.

The disclosed records contained no reason why YK would fail a background check, so his counsel wrote several letters to both TPSB and TCHC asking for information to help him understand why he failed.

On Aug. 3, 2021, counsel for TPS advised it would not provide information. On Aug. 4, 2021, TCHC said the same.

The court’s ruling

The court rejected an opinion, from a dissenting judge in this ruling, that this was an employment ruling (more on that below.)

“While a successful background check was a prerequisite for (YK’s) employment with the TCHC, the decision to fail (him) at the background check stage was a separate and distinct decision, which, as this case demonstrates, can have implications for (him) well beyond his specific employment by the TCHC,” it said. “As a result of his inability to pass a background check, (YK) was released from his position with Metrolinx and was unable to obtain a job with the police service.”

TPSB took the position that it failed a pre-screen background check and did not deny YK employment.

“This submission ignores the reality that the inevitable consequence of the decision was to deny (YK) employment, not just at the TCHC but for any position requiring a successful TPS background check,” it said.

It also agreed with TPSB that a process is needed to protect the integrity of sensitive law enforcement data, such as the identity of confidential informants or information that would prejudice ongoing investigations.

“However, the current practice of refusing to disclose any relevant information cannot be justified based on these concerns,” it said.

It found that TPSB breached its “minimal duty of procedural fairness” which was to give YK notice of the reasons he failed and copies of the information it was relying on to make that decision (subject to a process to protect sensitive information.)

It also needed to give YK an opportunity to dispute those reasons and the information. It remitted the matter back to TPSB to handle it “in a procedurally fair manner in accordance with these reasons.”

The dissenting opinion

Justice Varpio dissented from the ruling of his colleagues at the Ontario Superior Court of Justice.

“Specifically, I do not believe that the (TPSB’s) decision to fail the applicant at the security clearance stage of his application to be a Special Constable with the (TCHC) is a decision that is amenable to public law remedies,” said Justice Varpio.

Rather, the screening stage in an application process is “properly characterized as being part of the employment relationship” and such a relationship — between TCHC and its special constables — is one “governed by private law principles whereby public law remedies are not amenable.”

For more information see Khorsand v. Toronto Police Services Board, 2023 ONSC 1270 (CanLII)

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