COURT OF QUEEN S BENCH OF MANITOBA

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1 Date: Docket: CI (Winnipeg Centre) Indexed as: Kalo v. Winnipeg (City of) on behalf of Winnipeg Police Service Cited as: 2018 MBQB 68 COURT OF QUEEN S BENCH OF MANITOBA B E T W E E N: MICHAEL KALO, ) Counsel: ) applicant, ) IN PERSON ) for the applicant - and - ) ) THE CITY OF WINNIPEG (ON BEHALF OF) ) VIVIAN F.Y. LI WINNIPEG POLICE SERVICE, ) for the respondent ) respondent. ) JUDGMENT DELIVERED: ) May 30, 2018 LANCHBERY J. [1] On April 19, 2017, Michael Kalo filed an application seeking declaratory relief against the Attorney General of Canada and the City of Winnipeg. On April 25, 2017, Mr. Kalo filed a notice of abandonment of application against the Attorney General of Canada (on behalf of the RCMP). [2] Mr. Kalo seeks the remaining relief: i. A Declaratory Order aimed at the Winnipeg Police Service that the applicant is entitled to receive a CLEAR criminal record check certificate, whether standard or in-depth,

2 Page: 2 all with no further delay and no extra fees as the applicant has never been criminally convicted in court. ii. The order shall state that the information contained in the second page that was attached to the criminal record certificate which the WPS issued to the applicant on March 21, 2017, is inaccurate and/or misleading and/or irrelevant to the purpose of such certificate. iii. This order shall state that in making the supplemental information a part of the March 21, 2017 criminal record certificate, the WPS acted in a way that was unjust and/or unlawful. iv. This order shall state that in providing the information, the WPS acted in a way that amounts to professional misconduct and/or abuse of power and/or bad faith and/or breach of the applicant s privacy in violation of s. 11(d) of the Canadian Charter of Rights and Freedoms [ Charter ]. [3] Mr. Kalo made an application to the Winnipeg Police Service ( WPS ) for a Police Vulnerable Sector Check ( PVSC ). Mr. Kalo required the check as he had applied for a position as a school bus driver. Mr. Kalo was in possession of a clear PVSC, however, his prospective employer wanted an up-to-date check. When he received the results of that search, there was an attachment to the search. This attachment indicated that Mr. Kalo had been charged with one

3 Page: 3 count of sexual assault and one count of sexual interference. The form stated that these charges were stayed and a peace bond was entered into by Mr. Kalo. There was also reference to protection orders that remained in effect as at the date the PVSC was issued. [4] The City of Winnipeg takes the position that the PVSC and its new written policy is in accordance with various statutory and policy regimes, being: Sections 36(1)(b) and 40 of The Freedom of Information and Protection of Privacy Act, C.C.S.M. c. F175 ( FIPPA ); The City s Record Management By-Law No. 86/210; Section 44(1)(b) of FIPPA allows for disclosure if the consent of the person affected has been obtained; and Section 22(1)(b) of The Police Services Act, C.C.S.M. c. P94.5. [5] The City of Winnipeg argued that this case is nearly identical to the circumstances addressed by the Ontario Court of Appeal in Tadros v. Peel (Police Services), 2009 ONCA 442. Tadros involved withdrawn charges of sexual assault and sexual interference on condition that Tadros enter into a peace bond. Mr. Kalo s charges for sexual assault and sexual interference were stayed, which resulted in his entering into a peace bond. Both cases involved provincial police services acts (Police Services Act, R.S.O. 1990, c. P.15 and The Police Services Act (Manitoba)), as well as disclosure of records maintained by police forces, which may be disclosed after consent has been obtained (Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 ( MFIPPA ) and FIPPA).

4 Page: 4 [6] In Tadros, the Court stated: [27] This case was argued broadly on the question whether there are circumstances where the legislation allows the police to disclose information regarding withdrawn charges, either to "any person", or to another police or correctional agency in Canada. However, on the facts it is clear that the Peel Police Service disclosed the withdrawn charges to the Toronto Police Service based on the consent forms signed by Mr. Tadros for the purpose of the Vulnerable Persons Searches he authorized as part of his group-home job application process. Therefore, if the police were entitled to disclose information regarding the withdrawn charges pursuant to Mr. Tadros' consent, there is no need to decide the extent of the powers the police may have to disclose personal information without consent. [7] The court also dismissed Mr. Tadros claims for breach of his ss. 7, 8, and 11(d) Charter rights. The court also found that Mr. Tadros was aware of the withdrawn charges in his past. [8] I adopt those reasons as to the breach of Mr. Kalo s Charter rights as argued by him. I agree that I am not bound by an appeal court s decision from another jurisdiction. However, in this case, that decision is more than persuasive. [9] The other arguments advance by Mr. Kalo remain to be determined. In Ontario, the vulnerable persons record check is guided by the Ontario Association of Chiefs of Police Criminal Record Check Guidelines which was first introduced on March 28, This was introduced after Tadros was decided. [10] The Winnipeg Police Service Standard Operating Guidelines for Police Record Checks (the Guidelines ), which is appended as Schedule A to the affidavit of Shannon Hanlin, affirmed April 28, 2017, mirrors the Ontario provisions.

5 Page: 5 [11] The Exceptional Disclosure Assessment states that non-convictions may be considered for release on a PVSC if, in the opinion of the reviewing officer, there are concerns that an applicant may be a child sexual predator or has a history of fraud schemes targeting the elderly or other vulnerable persons. [12] The Guidelines, which were last amended in January 2017, provides in part as follows: Winnipeg Police Service Division 31 Customer Service Section POLICE RECORD CHECKS Standard Operating Guidelines Written By: Research Analyst Richard Puttenham Research and Development Unit In Consultation With: Research Analyst Richard Puttenham Research and Development Unit Initially Written (or Last Amended): January If a Criminal Record does exist, respond using the incomplete standard response requiring the applicant to submit fingerprints. Fingerprint results will be mailed directly to the applicant from the RCMP. Again, no information is to be released by the Police Service.. 9. PIP - Police Information Portal 1. The Police Information Portal (PIP) should be searched to process a PIC to locate possible indictable/dual convictions that are not on CPIC. PIP should be searched to process PVSC to locate possible indictable/dual convictions and non-convictions to determine if it meets the Exceptional Disclosure Assessment. 2. A direct quote from Section of the manual follows: 1. Queries for Non-Criminal Purposes: 6.36 If there is a request for release of any PIP information for security and reliability clearances, the requester must have

6 Page: 6 documented written consent of the subject of the query. The subject must agree to the release of information identifiable to that person that may be on the PIP System. This information must be verified as per PIP Policy PIP can be utilized for Vulnerable Sector checks, accreditation for special events, high risk government positions or locations (i.e. airports, marine ports, etc) and police personnel. In order to complete these checks, written consent of the subject of query must be obtained Victim Services workers shall not have direct access to PIP and all requests for indices checks shall be performed by CPIC Category I Agency personnel. Information obtained from the PIP, where the victim's consent has been obtained, will be vetted to ensure that only Information directly related to the victim is released PIP Information will not be shared with or made available to any third party. 3. Proper use of Information must be observed. For example, Extra Judicial Measures under the YCJA may be used for police investigative purposes but shall not be used for non-investigative purposes such as background checks. All information must be confirmed and authorized for release by the contributing agency. 4. List of Services Currently Publishing to PIP 1. Only Category 1, Law Enforcement agencies can obtain a copy of the police services currently publishing to PIP by sending an to CPIC-CENTRE-PIP@rcmp-grc.gc.ca and requesting a copy. This address can be used for any PIP questions. 10. Reconsideration Process 1. An applicant, who has had a Police Vulnerable Sector Check (PVSC) completed, may wish to have information excluded from the results. This process is not suitable for the Police Information Check (PIC) because the process is for the purposes of non-convictions only. Individuals wishing to have information removed from their PIC can utilize the Record Suspension process through the Parole Board of Canada. Information that is listed incorrectly because of a mistake or lack of information should be handled outside of this process. 2. It is recommended that each police service have a process in place to provide reconsideration of non-conviction information. 3. When processing a reconsideration request the police service should take the following criteria into consideration: 1. Date of incident.

7 Page: 7 2. Age of the applicant at the time of the incident. 3. All information available to the police service that relates to the applicant including Crown notes. 4. Details of the Incident including any written Information provided by the applicant or others who had contact with the individual at the time of the incident if available. 4. The reconsideration process should be clear, transparent and available to the public in areas such as the front counters of police divisions, web-site, etc. 5. The applicant should be informed in writing of the final decision of the police service and be provided a general reason if denied. 6. Requests for reconsideration should be made within 60 days of the completion of the applicant's PVSC. Reconsideration requests should be processed within 30 days. 7. The reconsideration request panel should consist of at least three members. An uneven and manageable number of members are required to ensure reconsideration requests are reviewed on a regular and timely basis. An example of a reconsideration panel would be: 1. Records Unit Manager or designate; 2. Operations Superintendent or designate; and 3. Major Crime Staff Sergeant or designate. 8. Police services may also wish to invite Legal Counsel to the panel meetings in order to ensure that the legal interests of the police service are protected; however, this Individual should not be involved in the final decision as it could be construed to be a conflict of Interest should Legal need to become involved in the matter at a future date. 9. Below are some further considerations when developing a reconsideration procedure. 10. To qualify for the reconsideration process: 1. Process is only available for PVSC. 2. Appeal must be made within 60 days upon receipt. 3. Can only appeal entries that appear on the record check. 4. Convictions will not be eligible for reconsideration.

8 Page: 8 5. Outstanding judicial orders or cases that are before the courts are not eligible for reconsideration 6. Youth Criminal Justice Act entries are not eligible for reconsideration. 7. If any of the above qualifications are not met, the application will be rejected upon receipt and the applicant will be notified in writing. 11. To apply for reconsideration: 1. Applicant submits letter or form designed by police service for reconsideration. 2. Applicant must include a copy of their current record check. 3. Applicant may include any documents they feel may support their request. 4. Police services may wish to limit the length of written representation to one or two pages. 12. The reconsideration panel: 1. Panel reviews submissions and responds in writing to the applicant 13. Considerations during the review: 1. Whether the incidents target a vulnerable person. 2. Whether there is repeated behaviour towards more than one person. 3. When the incidents took place. 4. The number of incidents. 5. Whether there is a pattern of incidents. 6. The reason the Incident did not result in a conviction. 11. Exceptional Disclosure Assessment 1. Non-conviction records are not released on a PIC. In exceptional circumstances, non-convictions may be considered for release on a PVSC. 2. There may be specific, exceptional cases where a non-conviction record gives rise to a concrete and compelling concern for the safety of vulnerable persons. Concerns were expressed with two categories of

9 Page: 9 predatory crimes: child sexual predators and fraud schemes targeting the elderly or other vulnerable persons. 1. Non-conviction records that shows either a single event or a pattern of alleged predation of vulnerable persons, sexually or financially may meet the threshold for disclosure 3. The focus of this assessment should not be based on general behavior prediction, but rather identifying those who knowingly targeted vulnerable persons to facilitate the commission of these types of criminal acts. 1. Police interaction information, including suspect information, may appear as a specific notation on a completed check that is descriptive of specific concerning behaviours, e.g., violent or threatening behaviour. 4. The decision to release non-conviction information should not be made by the member processing the record check. When applicable, the member will forward the information to a decision maker who is another member in a supervisory or managerial position, in order to determine if the Exceptional Disclosure Assessment has been met. 5. Exceptional Disclosure Assessment Tool 1. Step 1: Collect Records 1. Search for non-conviction information from national and local databases. 2. Based on the agency and position description determine which schedule(s) from the list of offences to use: 1. Schedule 1of the Criminal Records Act is for sexual offences for positions involving all vulnerable persons and will be used as a guideline. 2. Schedule 3 of the British Columbia Criminal Records Act Is for theft/fraud offences for positions involving adult vulnerable persons. 1. Although the British Columbia Criminal Records Act does not apply in Manitoba it will be used as a guideline. 3. Check if any of the non-convictions match the list of offences. 1. If NO (does not meet the assessment) then do not release.

10 Page: lf YES 2. Step 2: Review Records 1. Is there more than one incident or do the circumstances warrant concern? 2. Do the victim(s) meet the definition of a vulnerable person? 1. If NO (does not meet the assessment) then do not release. 2. If YES - provide occurrences to decision maker. 1. The following are factors for the decision maker to consider for the review: 1. Whether the incidents target a vulnerable person. 2. Whether there is repeated behaviour towards more than one person. 3. When the incidents took place. 4. The number of incidents. 5. Whether there is a pattern of incidents. 6. The reason the incident did not result in a conviction. 7. Where there is a known incident and the allegations are serious and credible. 2. As determined by the Commander, Division 31 in consultation with WPS Legal Counsel. 3. If charges have been stayed resulting in a non-conviction record, consult with the Crown. 3. Step 3: Release Record(s) 1. Once the decision maker has determined to release the records then the non-conviction should be released on the Police Record Check Supplementary Information page with the heading of Non-Conviction Records for Public Safety with the following definition.

11 Page: Non-Conviction Records for Exceptional Disclosure 1. Non-convictions are criminal charges that did not result in a conviction in court. However, the information meets the Exceptional Disclosure Assessment and is being release under the authority of the Police Services Act. 2. If the non-conviction records are from another police service, permission must be granted for release. 5. Step 4: Reconsideration Process 1. Applicants may apply for reconsideration of this decision, see Section 10, Reconsideration Process [13] In keeping with the Guidelines, Mr. Kalo s application was reviewed and the stayed charges were discovered by the officer. The officer considered the following information as set out in the affidavit of Shannon Hanlin: (a) the narrative report from the officer that investigated the original complaint; and (b) the letter from the Crown s office stating that the Crown determined that it was very difficult for the complainant to testify in the circumstances due to her young age, and that the peace bond was entered into to avoid a particularly arduous and protracted proceeding. [14] There is no reference in WPS s letter dated April 19, 2017 to Mr. Kalo about the use of the Exceptional Disclosure Assessment Tool that forms part of the Exceptional Disclosure Assessment, and how each criterion was evaluated in support of the conclusion. [15] It is clear that the offence in question matches the list of offences that should be of concern to the officer reviewing the application. The offence was

12 Page: 12 an incident involving Mr. Kalo and a young child, and the complainant met the definition of a vulnerable person. [16] However, the reviewing officer did not mention what the review of the records disclosed. In this case based upon the material provided, a review would have disclosed the following: (a) the incident targeted a vulnerable person; (b) the incident resulted in charges, which were stayed on May 11, 2009, almost eight years previous to the record check; (c) (d) (e) (f) there was one incident with a young child; there was no pattern of incidents; there was no conviction as the charges were stayed; there was no serious or credible information, other than the letter dated March 17, 2017 from the Crown attorney s office, which appear to be identical to the reasons offered by the officer; and (g) the WPS also reviewed the Variation Order and Final Order issued in respect to Mr. Kalo s Queen s Bench Family Division action in File No. FD [17] What I find troubling is that this review of Mr. Kalo s application occurred without any participation by Mr. Kalo as to what was alleged to be exceptional circumstances. The conclusion as to the stayed charges being serious and credible, and therefore exceptional, without participation by Mr. Kalo or his counsel is troubling.

13 Page: 13 [18] The decision for exceptional disclosure relied on only half of the information that could have been obtained by the reviewing officer. But what conclusion was reached independent of the Crown s assessment in its letter of March 17, 2017? It is clear in WPS s letter of April 19, 2017, that only the opinion of the Crown s office was sought. As noted by Mr. Kalo, the person who responded on behalf of the Crown s office was not the Crown attorney that entered a stay of proceedings. I find this to be troubling. [19] There was never any opportunity afforded to Mr. Kalo, or the individual Crown attorney that decided to stay the charges, to provide comment as to circumstances that may not have been included in the Crown s file. [20] Certainly, Mr. Kalo should be afforded the opportunity to explain the circumstances. In this case, there was a messy, protracted litigation with his former spouse. Did those circumstances contribute in any way to charges being filed by the Crown? In fact, even after reconsideration, there is no evidence that the decision of the Court of Queen s Bench Family Division in Mr. Kalo s family proceeding were ever considered. [21] Further, the Guidelines allow for a unilateral review if it believes exceptional circumstances exist. A single WPS officer makes the decision to disclose material. This single officer, without hearing from Mr. Kalo, determined the allegations were serious and credible. On what basis did he decide serious and credible? There is no mention of the nature of the disclosure.

14 Page: 14 [22] It is only after this officer made the decision to release the nonconvictions and Family Division court orders that Mr. Kalo was afforded the opportunity to provide a written submission to a three-officer panel of the WPS. [23] What is more troubling is that the members of the reconsideration panel are members of the WPS, which authorized the exceptional disclosure at first instance. The reconsideration panel did not provide Mr. Kalo the reasons for its decision once it had applied the Exceptional Disclosure Assessment Tool to these fact circumstances. [24] The WPS reported to the Crown s office the allegations which formed the basis of the charges in question; the very charges which were then stayed by the Crown s office; and now the WPS becomes the final arbiter as to whether exceptional circumstances exist. The effect is that the WPS can now unilaterally release the non-conviction charges to third parties. This process reminds me of the old adage of being judge, jury and executioner. [25] Mr. Kalo can only ask for reconsideration after disclosure is complete. He was not afforded an opportunity to withdraw his application in the event that he no longer wanted the information disclosed, or wished to make a submission as to the matters at hand. The net effect is that the WPS found Mr. Kalo guilty and that those stayed charges were of such importance that a potential employer needed to be aware of this information, and disclosed the charges. [26] The effect of this decision is immediate. From this point forward, he must attempt to clear his name. Although not a violation of his s. 11(d) Charter

15 Page: 15 rights as to the presumption of innocence prior to a finding of guilt or innocence, this disclosure without his input is eerily similar. [27] The rules of natural justice provide a common law duty of procedural fairness. The most recent decision on procedural fairness is Demaria v. Canada (Attorney General), 2017 FC 45. [28] Demaria involved decisions taken by the Parole Board of Canada. I find it is relevant as the Criminal Records Act, R.S.C., 1985, c. C-47, where the PVSC is governed, also includes provisions for parole. It is clear that the Parliament of Canada found these two aspects of a Criminal Record Check to be so significant as to include them in one federal statute. [29] So what did the Federal Court determine to be relevant in order to assess whether Mr. Demaria was afforded procedural fairness by the Parole Board. In order to provide context for my analysis, I will provide the relevant paragraphs: [99] In Baker, above, the Supreme Court of Canada established that the duty of procedural fairness varies depending on the context. [100] Justice L Heureux Dubé provided a non-exhaustive list of factors and emphasized that the scope or content of the duty of procedural fairness must be determined in the specific context of each case. Justice L Heureux Dubé reiterated that procedural fairness is based on the principle that individuals affected by decisions should have the opportunity to present their case and to have decisions affecting their rights and interests made in a fair and impartial and open process appropriate to the statutory, institutional, and social context of the decision (Baker at para 28). [101] The factors include the nature of the decision, the nature of the statutory scheme, the importance of the decision to the person affected, the legitimate expectations of that person and the choice of procedure made by the decision maker. [102] With respect to the nature of the decision and the process followed in making it, Baker guides that the more the process resembles

16 Page: 16 judicial decision making, the more likely it is that procedural protections closer to the trial model will be required (Baker at para 23). Although the process followed by the Board in making parole decisions is more inquisitorial than adversarial, the Board must assess and determine the weight to attach to the evidence before it, and this often involves assessments of credibility. In this case, the Board noted Mr. DeMaria s denials, but did not wait for his full submissions. Nonetheless, the Board made adverse credibility findings, relying on only documentary evidence. [103] With respect to the nature of the statutory scheme, greater procedural protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted (Baker at para 24). In the present case, the Act provides for an appeal of a Parole Board decision. In addition, the decision of the Appeal Division may be the subject of an application for judicial review to this Court. [104] The importance of a decision to the individuals affected is a significant factor affecting the content of the duty of procedural fairness. The more important the decision and the greater the impact on the persons affected, the greater the procedural protections required (Baker at para 25). The decision to revoke parole is of significant importance. As noted above, this is the difference between living in the community with conditions while still serving a life sentence and remaining in custody awaiting a possible future opportunity to have parole considered. Revocation of parole may also negatively impact any future applications for parole. [105] The legitimate expectations of the person challenging the decision also affect what procedures the duty of fairness requires in given circumstances. If the person has a legitimate expectation that a certain procedure will be followed, the duty of fairness requires that procedure (Baker at para 26). Mr. DeMaria requested an oral hearing as early as January 2012, but the Board clearly communicated in February 2012 that the review would proceed on the basis of written material. [106] Baker also guides that the choice of procedure made by the decision-maker should be taken into account and respected, particularly when the statute leaves it to the decision-maker to choose its own procedure, or when it has an expertise in determining what procedures are appropriate in the circumstances (Baker at para 27). Subsection 140(2) gives the Board discretion to determine whether to hold an oral hearing, unless a hearing is mandated, but does not include any criteria. The Policy Manual provides some guidance, and also reminds Board members of the duty to act fairly. [107] The Respondent submits that four of five Baker factors support the view that the Board met the duty of procedural fairness owed in the overall context and that an oral hearing was not required. In my view,

17 Page: 17 three of five factors support a higher degree of procedural fairness. Regardless, the scope of the duty of procedural fairness is not determined based on a tally of the favourable Baker factors. The factors are not exhaustive and some factors attract more weight than others. The Baker factors guide decision makers about the scope or content of the duty of procedural fairness; i.e., what measures are called for to respect the principle that the person affected should have the opportunity to present their case fully and fairly (Baker at para 28). [108] In the present case, the nature of the decision and the manner in which the Board makes its decisions, coupled with the importance of the decision to Mr. DeMaria, supports the need for more than the minimum level of procedural fairness. [109] In some contexts, the duty of fairness may be satisfied by way of a full and complete written hearing (Baker at paras 33-34), even when Charte rights are engaged (Singh at 213). [110] The Board may have satisfied its duty of procedural fairness without holding an oral hearing if it had granted Mr. DeMaria s request to postpone his parole review and Mr. DeMaria had subsequently provided more comprehensive written submissions in response to the numerous allegations, rather than limited submissions on the procedural fairness issues. As noted by the Respondent, Mr. DeMaria s written submissions along with his own affidavit were submitted to the Appeal Division in August 2014, and responded to the substance of most of the allegations. However, the Parole Board had refused the third request for a postponement to permit such submissions two months previously. The Appeal Division considered the appeal, which was based on a breach of procedural fairness, only on the basis of the information on the record before the Board. The refusal of the Board on June 13, 2014, to postpone the review for the third time is, therefore, an important part of the relevant context that informs the scope of the duty of procedural fairness and whether an oral hearing was required. [111] The relevant context also includes that Mr. DeMaria s liberty interests were at stake, his credibility was impugned, and he faced numerous allegations, which he believed he should respond to. As noted, he was not aware that the Board would base its decision on his attendance at two weddings. [112] In the circumstances, following the refusal of the third postponement request, an oral hearing should have been provided to permit Mr. DeMaria to respond to the allegations and to address the credibility findings in Memo #9. Alternatively, if a postponement had been granted for some reasonable period of time to permit Mr. DeMaria to provide his submissions in response to Memo #9 before the Board made findings regarding his credibility and the reliability and persuasiveness of the information, an oral hearing may not have been

18 Page: 18 required to meet the duty of procedural fairness. As noted, the duty of procedural fairness varies with the context and if the postponement had been granted, the context would have been different. [113] In the circumstances of this case, the Appeal Board erred in finding that the Board had met its duty of procedural fairness. [30] Applying Demaria to the fact circumstances before me, I will consider the following: (a) (b) (c) (d) (e) the nature of the decision; the nature of the statutory scheme; the importance of the decision to the person affected; the legitimate expectations of that person; and the choice of procedure made by the decision maker. [31] The nature of the decision involves a determination by a single officer whether Mr. Kalo obtains a clear PVSC or whether his record is deemed to be exceptional. Was this beyond the normal function of the officer, who prior to the change in policy, would have the function of a scribe to disclose convictions only? The officer is now given wide discretional power to determine exceptional circumstances and rely upon an applicant s consent to disclose what he determines is appropriate. [32] A statutory scheme does not exist that authorizes the disclosure of non convictions. These are the Guidelines instituted by the WPS alone. I accept WPS s argument that the record keeping is in accordance with authority granted under FIPPA, The Police Services Act and the Guidelines. However, decisions

19 Page: 19 that involve exceptional circumstances is not a function of record keeping. This is far more than the record keeping, which is authorized by provincial legislation. [33] The importance of the decision to Mr. Kalo is exceptionally high. Without being informed of the new policy, his consent must be considered as tainted. He was not made aware that what had not been disclosed before, could be disclosed without his input. [34] The legitimate expectations of Mr. Kalo were that he expected to receive a clear PVSC. There had not been any change in the circumstances in his mind. He was aware of the charges that were stayed, but these did not appear on any PVSC prior to this date. The protection order had not appeared either. It is legitimate for him to have expected the same result. [35] The choice of procedure employed by the WPS officer is precisely what was contained in the Guidelines. However, what is at issue as outlined in Demaria, at paragraph 100, is: Justice L Heureux Dubé reiterated that procedural fairness is based on the principle that individuals affected by decisions should have the opportunity to present their case and to have decisions affecting their rights and interests made in a fair and impartial and open process appropriate to the statutory, institutional, and social context of the decision (Baker at paragraph 28). [36] It is clear that Mr. Kalo was not afforded any opportunity to present his case prior to the initial decision being made. It is also true that he could make a written submission on his reconsideration application, but this was limited. He was also prohibited from making any submission about protection orders that may be disclosed.

20 Page: 20 [37] In examining the social context in which this decision was taken, it is true that protecting vulnerable people from abuse of all kinds is a recognized societal responsibility. The importance of taking steps to protect the vulnerable has also evolved into a significant concern in recent years. We have seen the advent of zero tolerance when allegations of child, spouse and elder abuse are made. The Domestic Violence and Stalking Act, C.C.S.M. c. D93, has been passed to address societal concerns. [38] Without being allowed to participate in the original decision, the process contained within the Guidelines is not fair, is not impartial and is not open. The reconsideration process only happens after the initial decision has been made and does not correct the unfairness, partiality and closed nature of the process. [39] In Tadros, the Ontario Court of Appeal addressed this question by commenting that any damage done by the disclosure of the withdrawn charges could be corrected by the applicant advising the prospective employer of the circumstances as to why there were eight withdrawn charges. With the greatest of respect to the Ontario Court of Appeal, the mere presence of stayed or withdrawn charges, or protection orders, may cause an applicant to be rejected out of hand. The applicant may never get an interview to set forth his explanation. This must also be weighed against the disclosure without his input. [40] Further, one of the concerns in Tadros was the disclosure between police services. Here, the disclosure would be to a third party.

21 Page: 21 [41] I return to that question of exceptional. These are not the ordinary, record checks being performed by a member or members of the WPS. If an applicant s Criminal Record Check showed a conviction, the applicant will be aware that this could be disclosed. An objection that could be raised by an applicant if convictions were disclosed is non-existent. [42] It is true that each of the above factors outlined in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, are not to be used as a scorecard in determining whether Mr. Kalo has been provided with procedural fairness. However, of the five factors, the first four are in Mr. Kalo s favour, and the fifth factor is neutral. Society does have an interest in protecting vulnerable persons, but also has an interest in proper administrative law principles being followed. [43] If Mr. Kalo was permitted to make a formal in-person submission once the officer had decided that exceptional circumstances exist based upon a review of the record that would resolve one of the concerns. In the event that Mr. Kalo was unsatisfied with this decision, any review should also require his participation. [44] Third, should there be an appeal to an independent agency if Mr. Kalo was unsatisfied with this decision? Such a decision would provide further protection for all who apply for a PVSC. [45] Fourth, the presence of a notation on the Adult Abuse Registry and Child Abuse Registry would also be a factor that should be taken into consideration by

22 Page: 22 the WPS in its assessment tool. In this instance, Mr. Kalo s name is not on either registry. [46] Having reviewed the facts before me, notwithstanding that I have strongly endorsed his position that the policy and its procedure of exceptional disclosure is flawed due to procedural unfairness, I am not in a position to grant the relief sought by Mr. Kalo. The relief sought by Mr. Kalo is outside my jurisdiction and the scope of the matter before me. [47] Mr. Kalo requested declaratory relief. Any declaration that may be granted by me cannot, and should not, overturn the decisions of the WPS on declaratory relief. However, it is important to consider that Mr. Kalo is a selfrepresented litigant. During the hearing of his motion, I had indicated that although he had not requested judicial review, what he was requesting was akin to judicial review. Counsel for the City of Winnipeg did not object to this suggestion. Therefore, I will consider Mr. Kalo s request to be that of judicial review. If I were to decide this case on declaratory relief alone, Mr. Kalo would bring relief for judicial review, which would not be applying proportionality in the proper manner. [48] The WPS Exceptional Disclosure Assessment in question is extremely flawed as I have discussed above. Mr. Kalo was denied the opportunity to present his case either to the reviewing officer, or the reconsideration panel in person. Therefore, I am ordering the WPS to provide him with an opportunity to an in-person hearing in accordance with the remaining process outlined in the

23 Page: 23 WPS Exceptional Disclosure Assessment. This in-person hearing should occur within 30 days of the date this order is signed. Further, that in the event that Mr. Kalo s application is denied, any reconsideration would require an in-person hearing. The reconsideration hearing would follow the existing Guidelines except for the in-person hearing. [49] The issues raised in Mr. Kalo s motion are of significant importance to the public at large. If individual police departments were permitted to create their own separate guidelines for exceptional disclosure or different hearing processes, the resulting and potentially inconsistent multi-jurisdictional approach has the potential to create mass confusion. There should be certainty and predictability in outcomes no matter which police agency is considering exceptional disclosure. [50] I note that the Parliament of Canada has created a process for disclosure of an original conviction even when a pardon has been granted. [51] The Criminal Records Act provides guidance on this issue, and states: Definition of vulnerable person 6.3(1) In this section, vulnerable person means a person who, because of his or her age, a disability or other circumstances, whether temporary or permanent, (a) (b) is in a position of dependency on others; or is otherwise at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them. Notation of records (2) The Commissioner shall make, in the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police, a notation enabling a member of a police force or other authorized body to determine whether there is a record of an individual s conviction

24 Page: 24 for an offence listed in Schedule 2 in respect of which a record suspension has been ordered. Verification (3) At the request of any person or organization responsible for the well-being of a child or vulnerable person and to whom or to which an application is made for a paid or volunteer position, a member of a police force or other authorized body shall verify whether the applicant is the subject of a notation made in accordance with subsection (2) if (a) (b) Unauthorized use the position is one of trust or authority towards that child or vulnerable person; and the applicant has consented in writing to the verification. (4) Except as authorized by subsection (3), no person shall verify whether a person is the subject of a notation made in accordance with subsection (2). Request to forward record to Minister (5) A police force or other authorized body that identifies an applicant for a position referred to in paragraph (3)(a) as being a person who is the subject of a notation made in accordance with subsection (2) shall request the Commissioner to provide the Minister with any record of a conviction of that applicant, and the Commissioner shall transmit any such record to the Minister. Disclosure by Minister (6) The Minister may disclose to the police force or other authorized body all or part of the information contained in a record transmitted by the Commissioner pursuant to subsection (5). Disclosure to person or organization (7) A police force or other authorized body shall disclose the information referred to in subsection (6) to the person or organization that requested a verification if the applicant for a position has consented in writing to the disclosure. Use of information (8) A person or organization that acquires information under this section in relation to an application for a position shall not use it or communicate it except in relation to the assessment of the application. [52] There are many protections built into this process for disclosure. These protections exist even though the person requesting the search was convicted of an offence which resulted in a pardon.

25 Page: 25 [53] With the greatest of respect, I request that the Province of Manitoba consider the effect of the WPS Exceptional Disclosure Assessment as identified by me. I acknowledge that I am without jurisdiction, but the issues raised are of such importance that the province should consider whether a province wide Exceptional Disclosure Assessment should be implemented to address some or all of my concerns. The process could reflect what the Parliament of Canada has created for those who have received a pardon, but for which PVSC permits disclosure. The problems I have identified may be avoided in the future if legislation existed at the provincial level. [54] It is my opinion that procedural fairness should be a cornerstone of any policy moving forward. I trust that the City of Winnipeg will take my comments seriously as to the deficiencies identified in its Guidelines. [55] As the matters raised by Mr. Kalo are of significant importance to the citizens of Manitoba, I exercise my discretion in ordering that each party shall bear their own costs. J.