Court agrees with CCLA that police background checks require oversight

On February 27, 2023, the Divisional Court in Ontario released its decision in Khorsand v. Toronto Police Services Board. The CCLA was an intervenor in the case. The Court held that a police force can be required to provide reasons why an individual does not pass an employment background check and allow them to dispute those reasons. The Court agreed with the CCLA’s argument that a reason why court oversight is required is that systemic racial discrimination can influence a police background check. 

Mr. Khorsand applied to be a Special Constable, a role like a police officer, with the Toronto Community Housing Corporation. For Mr. Khorsand to become a special constable, he had to pass a background check by the Toronto Police Service (“TPS”). The TPS failed Mr. Khorsand’s background check and refused to tell him why. The records the TPS relied on were occasions where Mr. Khorsand called the police to report an alleged crime or was a witness to an alleged crime. In those records, police officers described Mr. Khorsand as “Persian”, “Middle Eastern”, or “Brown”. Mr. Khorsand had no criminal record and had never been charged with a criminal offence. 

The CCLA argued that it was important that the Court rule on whether the TPS’s actions were fair and reasonable. This is because of systemic discrimination that exists when the police gather and use police records, especially in relation to racialized individuals. Racialized individuals are more heavily policed than others. The Court agreed with the CCLA, and emphasized: 

• Systemic racism and discrimination exist across police forces.
  
• There is a serious public interest in making sure that the use of police records does not result in more discrimination.
  
• Relying on police record checks can have a greater impact on racialized communities.

The decision in Khorsand reflects the significant impact that police records can have on a person’s life. It is important that the courts and others be vigilant about the potential for racism and discrimination if the police are asked to perform a background check. 

You can read the Divisional Court’s decision here and the CCLA’s factum here. 

You can read more about the case for reforming employment and volunteer police record check practices in Canada here. 

The CCLA is grateful to Alexi Wood and Saad Gaya of St. Lawrence Barristers PC for their excellent pro bono representation in this case.