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Alberta Alberta government urged to regulate police record checks

The Alberta government is facing calls to introduce legislation to restrict police record checks after an Edmonton man lost his job when he was erroneously labelled as a sex offender.

The case was the subject of a recent court ruling that upheld a privacy complaint against the Edmonton police, with the judge concluding that without a law, people who need the documents for their employment are “held ransom” by the current system. The province’s Information and Privacy Commissioner plans to use the court ruling to urge the province to bring in legislative changes.

Ontario is the only province with legislation on police checks in place. British Columbia overhauled its system through regulation several years ago, but privacy advocates there say the changes weren’t enough.

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The growing use of police record checks has led provincial privacy officers and judges to warn that unsubstantiated allegations and mental-health incidents have been released to potential employers. The release of such information has caused people to lose their jobs. In addition, some people have had their university admissions revoked or have been turned away at international borders.

In the Alberta case, a man who is referred to in the decision only as AB, was fired after a detective told his employer that he was convicted of sexual assault when he was a young offender. The man, whose name is protected because the conviction happened when he was an adolescent, had held his job at a youth centre for 11 years.

The man came to the attention of police after he was involved in restraining a violent youth while at work. Police subsequently ran his name through the database, uncovered his youth conviction and then warned his employer that he was a “sex offender.”

The detective then instructed the employer to ask AB to get two types of police checks often used to screen employees. The officer knew those documents would uncover the youth conviction, as well as information from other incidents that did not lead to convictions.

According to the judge and Alberta’s privacy office, the detective’s actions violated two laws meant to protect young offenders, as well as the man’s privacy rights. The man’s 1995 charge, 16 years before his suspension from work and subsequent firing, was granted an absolute discharge − a finding of guilt without a conviction.

Justice Robert Graesser said forces such as the Edmonton Police Service have given themselves “a veto” on who can be employed. He suggested Ontario’s law should be a model for change in Alberta.

“Until Alberta has similar legislation, applicants are essentially held ransom to a police force’s mandated terms before information can be disclosed,” he wrote in the decision, issued on Aug. 1.

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Rules around police checks vary from province to province. Within some provinces, the guidelines differ between detachments. A study of police checks conducted by the Vancouver Police in 2013 found that 72 per cent of background checks released that year contained no information on convictions, rather the documents had mental-health calls, suspected wrongdoing, drug overdoses or other material sitting in police notebooks.

Ontario’s law came into force last year and prohibits police from releasing records that did not result in convictions in all but the most extreme circumstances. The B.C. government passed regulations in 2014 that forbid the disclosure of mental-health calls. However, civil-liberties groups in B.C say mishandled police record checks are an ongoing problem and laws are needed.

Tony Paisana, a defence lawyer based in Vancouver, said the lack of rules around police checks affects thousands of Canadians every year.

“This is one of the more pressing civil-liberties issues across the country," said Mr. Paisana, who was part of a group within the Uniform Law Conference of Canada that called on provincial governments to legislate police checks.

“These are all things that don’t amount to criminal convictions but have the same weight as criminal convictions in this context because they have such an impact on people."

The office of Alberta’s Justice Minister said in a statement that the judge’s decision is being reviewed. The Alberta Association of Chiefs of Police issued guidelines in 2018 that request officers not to release non-conviction information in police checks unless they think it is relevant to the person’s job. However, the guidelines still condone the release of that information in other circumstances as well.

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Alberta’s privacy commissioner is waiting to see whether the Edmonton Police Service will appeal the recent court ruling before sending a letter calling for change to the provincial government.

In a statement, the Edmonton Police say the detective in the case was investigated and found to have violated police-service regulations. However, the matter was dismissed by the chief of police and no warning or remedial action was taken.

Meghan McDermott, staff counsel with the BC Civil Liberties Association, said police forces should not be setting their own rules for what information is released.

“The system now is way too lax and loose, so you get these privacy infringements," she said.

"It’s an area so ripe for legislatures to act on. It’s far too important to be left to self-regulation by police forces.”

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