Background
Mr. Khorsand applied for judicial review of the Toronto Police Service Board’s (the “Board”) background check after multiple failures as he sought employment as a Special Constable with the Toronto Community Housing Corporation (Toronto Housing). The Board refused to give Mr. Khorsand the reasons for the failed checks even though he has no prior criminal convictions or charges. After accessing police records that confirmed this, he challenged the Board’s decision by seeking Judicial Review of the Divisional Court (the “Court”).
This case brings up the issue of the intersection of race and law enforcement. Mr. Khorsand immigrated to Canada from Iran in July 2008, and later became a Canadian citizen in 2013.[1] His passion was a career in law enforcement, which led to him graduating from the Police Foundations Diploma with honors from Trios College in 2016. In 2018 he graduated from Basic Constable Training Program from Control Institute.
After graduation he was appointed as a Special Constable with Toronto Housing by the Board in May 2018 pursuant to s.53 Police Services Act The appointment was later approved by the Ministry of Community Safety and Correctional Services (what is now called the Ministry of the Solicitor General).[2] The appointment was for a five-year term. A special constable holds the same powers as a police officer (s.53 Police Services Act), though they are not first responders.[3] The powers and limitations are dependent on the position, which is normally in the community, such as in the public or private institutions and community policing.
Timeline of events
Mr. Khorsand began his career in law enforcement as special constable with Toronto Housing.[4] This position was conditional on the basis of a background check by the Board. On May 18, 2018, he was informed by the Board he did pass the background check. He chose to leave Toronto Housing for Metrolinx in September 2018. Metrolinx had the same condition of a police background check, but it was conducted by the Ontario Provincial Police (“OPP”). On February 19, 2019, Mr. Khorsand failed the background check. Furthermore, the OPP stated that it would not recommend him for the special constable designation.[5] He was terminated by MetroLinx.
Concurrently, Mr. Khorsand applied to Toronto Police Service (TPS) as a Police Constable and reapplied to his previous position with Toronto Housing. He failed both background checks: in July 2019, he did not pass the background check with TPS, then in December 2019 he did not pass the background check with Toronto Housing. The Board notified him that he was ineligible for a further background check until July 2020.[6] Once he was eligible for a background check again, he applied to his previous position and in April 2021 he was notified he failed the background check for the second time.
The Board refused to give Mr. Khorsand the reasons for the failed check. He applied for an Access to Information with the TPS in June 2021.[7] The report detailed several incidents in Mr. Khorsand’s history between 2010-2018. The first incident was when Mr. Khorsand was 18. He was playing with a paintball gun with some friends. The police initially believed the guns were assault rifles. Despite this, the police gave them a warning and did not bring any charges. In this report he and his friends were described as Persian and Middle Eastern by the police. [8]
In the next two incidents, Mr. Khorsand’s race was likewise identified, this time as “Brown.” In one, while a student at Trios College, Mr. Khorsand reported to the police an alleged reckless discharge of a firearm. In the second incident he was a witness to an alleged assault causing bodily harm. The last incident was in 2018 when Mr. Khorsand was a pedestrian witness in an assault with a weapon investigation. None of the incidents resulted in a criminal charge or conviction for Mr. Khorsand.[9]
This report did not serve as an explanation as to why Mr. Khorsand would be unsuccessful with a background check. Although his interactions with the police were unnecessarily racialized and heavily documented, he was not suspected, charged, or convicted of any criminal offense. He had been able to pass the first background check, but after the rejection from OPP he was unable to successfully pass any other background checks.
The TPS and Toronto Housing rejected his request for the reasons behind the failures.[10] Bewildered by repeated failures of the pre-screening check, Mr. Khorsand applied for judicial review of the Board’s decision rejecting his application with Toronto Housing.
An apparent theme in the decision of the Court was how discrimination plays a role in the relationship between law enforcement and racialized communities. The majority accepted that discrimination played a role in the police checks, with which the dissent agreed. The dissent, however, found that Mr. Khorsand did not present any concrete evidence of discrimination that veered from standard police procedure.
Issue 1: Judicial Review
The Divisional wanted to ensure that the Board’s decision was subject to judicial review. If it was, the Court would then determine if the board owed Mr. Khorsand a duty of procedural fairness, and, if so, did it breach its duty.
Issue overview of Judicial Review:
Judicial review is a process by which the courts evaluate if the decisions made by administrative bodies are fair, reasonable, and lawful. There are limits to the scope of judicial review in which the court evaluates their decisions.
The question before the Court was whether the April 2021 decision of the TPSB that the Applicant failed the “pre-screen” background check is subject to judicial review. In answering this question, the Court first analyzed if the Respondent’s decision has sufficient public character to determine if they can review the case.
Sufficient Public Character:
The majority determined that the application process to work as a special constable was subject to judicial review because it affects the public’s confidence and rights to law enforcement.[11] The impact of criminal records on racialized populations has contributed to the systematic racism in law enforcement. This connected Mr. Khorsand’s case to the broader impact of criminal record checks and therefore the majority agreed that sufficient public character requirement was fulfilled.
The dissent agreed with the Respondents that their hiring process is akin to an employment relationship. A more recent decision by the Supreme Court of Canada discusses how public bodies can make decisions that are private in nature.[12] If the public body is not exercising “a power central to the administrative mandate given to it by Parliament” but is rather exercising a private power then it is not subject to judicial review.[13] Here Respondents claim that their hiring process was an exercise of their private power. The dissent judgment agreed with this statement. Normally, seeking redress from employment relationships is governed by private law principles, and therefore is not subject to judicial review.
In Air Canada v. Toronto Port Authority 2011, the Federal Court of Appeal adopted factors to consider in determining whether a decision has sufficient public character to warrant the court intervention.[14] The Divisional Court reviewed the applicable factors. Some of the factors highlighted the lack of transparency and the racial inequalities in the Board’s recruitment process.
The Character of the Matter For which Judicial Review is Sought
The first factor explores if the matter is a private matter or has an impact on a group of people or community - in this case, when people who seek to join law enforcement in Toronto. Under section 53 of the Police Services Act, the Board has the power to appoint special constables. The entire Court did agree on the public nature of the special constable’s duties and responsibilities to the public and the law enforcement agencies they work for.[15]
Where the disagreement lies is whether the background checks were within the Board’s statutory duties. Justice Varpio delivered the dissenting judgment, in which he agreed with the Board’s argument that “hiring staff” is a private function.[16] The Acting Inspector David Oullette, the head of the Talent Acquisition Unit stated that they do not provide reasons for the failure of a background check.[17] One of the reasons given was privacy as the records that are obtained contain sensitive information from other law enforcement databases.
The majority disagreed that background checks were a separate function from the Board’s statutory powers. The background checks are a requirement for appointment and employment as a special constable. Also, the information sharing between different law enforcement agencies meant that Mr. Khorsand would not be able to pass a background check throughout Ontario. The lines became blurred with background checks and the board’s statutory duties.
In the end, the majority held that the mandatory requirement of a background check and later discussed the wider impact of a criminal check giving the board’s decision public character.
The Nature of the Decision-Maker and Its Responsibilities
The second factor considers whether the decision maker is exercising public or private functions. The majority questioned what the public responsibilities of the Board are. In fact, the Board argued that Toronto Housing is responsible for recruiting, training and handling complaints of special constables which was stated in the Memorandum of Understanding (MOU).[18] However, the majority emphasize the MOU states the responsibility of the Board to provide law enforcement officials. The Board must conduct a background check for appointment as special constable. Therefore, background checks flow from the Board’s responsibility to provide law enforcement to Toronto Housing.[19] On the contrary, in dissent, Justice Varpio reiterated that hiring staff is a private function which has been previously determined by the courts.
The Existence of a Compulsory Power
The third factor is the existence of a compulsory power. This is when the decision affects the public at large or a defined group which could be an indicator that the decision is public in nature.[20] The Board’s power to appoint special constables does not apply to every citizen in Toronto, but anyone who wants to work in law enforcement in Toronto must apply through the Board. Since Mr. Khorsand is a member of a defined group, namely a Special Constable, he cannot be gainfully employed without successfully passing a background investigation with the Board.[21]
However, the Respondents argued that Mr. Khorsand could make a career change and then would not have to consent to a background check. All of the justices accepted the Applicant’s argument that this would have a negative impact on human rights and the public interest as a public body having such power without giving reasons is unacceptable.[22]
Does the Decision Fall into the “Exceptional Category”?
The last factor that will be discussed is the “Exceptional Category”. In this factor, the Court thoroughly analyzes how race and police checks have interacted throughout this matter and the racialized communities. The courts have created a test on what is considered an “Exceptional Category” on a public decision:
Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable. This may include cases where the existence of fraud, bribery, corruption or a human rights violation transforms the matter from one of private significance to one of great public moment.[23]
The Court only analyzed human rights violations as the other examples were not evident in this case. The dissent, at paragraph 126, found that racial identifiers are standard police procedure and are not indicators of systemic racism or prejudicial to Mr. Khorsand.[24] The majority, however, found that racial identifiers and other discriminatory police practices were violations of human rights and negatively impacted Mr. Khorsand.
Justice Varpio did not agree that Mr. Khorsand’s case falls into the exceptional category. The mention of race throughout Mr. Khorsand’s record does not make those interactions inherently racist.[25] The Supreme Court in Re v Find says it is standard police practice to use racial identifiers when describing an individual.[26] There was no evidence presented that these interactions were motivated by race.
The intersections of racism and police interactions were analyzed through a macro analysis by the majority of the Court. The majority did find that Mr. Khorsand’s case indeed fit the exceptional category, but they did not conclude that the police were solely motivated by race.[27]
Ultimately, the majority did find the failure of Mr. Khorsand’s background check with the Board did fit into the exceptional category. This case touched on the historical systematic racism within law enforcement and the use of criminal record checks as hurdles for racialized individuals entering law enforcement.[28] The majority was focused on the wider impact on the public and building confidence in law enforcement.[29]
The majority recognize the Court’s supervisory role in the protection of human rights and the lack of transparency of the Board. Barring inconsistency with the law and defying the public interest, the board’s decision not to release any information regarding Mr. Khorsand’s failure was considered jarring.[30] More importantly, the stigma of police records negatively impacted Mr. Khorsand who had well-documented non-conviction activity.[31]
The Board’s decision does affects Mr. Khorsand’s rights to equal treatment with respect to employment. Public confidence and trust in law enforcement agencies and those who administer them is crucial. More importantly, those agencies are representative of the communities they serve. This if of particular importance for particular for racialized communities where the relationship with law enforcement has been eroded.
The Canadian Civil Liberties Association, which was an intervener in this matter, submitted that racialized individuals are more likely to interact with the police and some of these interactions could be based on systematic discrimination.[32] This continues the historically intense relationship between racialized communities and their distrust of law enforcement.
In R vLe 2019, a case about racial profiling, the Supreme Court explored the tensions between racialized communities and the police.[33] They highlighted reports and research studies that show the over-policing of racialized communities from the 1970s to 2017.
One of the reports that was highlighted was the Tulloch report. The Tulloch report analyzed the carding practices in Ontario and the impact on racialized communities.[34] Carding or “street checks' is when a police officer stops individuals on the street or in their cars and ask them for their identification based on suspicion of criminal activity. The issue arose as a result of the carding of racialized youth and individuals being the main, and disproportionate, target of these checks.[35] This practice led to negative mental and social impacts for racialized youth as it limited opportunities of employment and education because of the records that resulted from these checks.[36]
All members of the Court agreed that there was systematic racism with law enforcement in Toronto. In June 2022, TPS released “In the Race & Identity Based Data Collection Strategy: Understanding the Use of Force & Strip Searches in 2020” which outlined how much interaction police have with racialized communities.[37] Unsurprisingly, this report reinforces decades of studies and research on the tense relationship between racialized communities and the police. Additionally, the Acting Chief James Ramer of The TPS admitted that there was anti-black and systematic racism with their service which translates to officers enforcing the law differently.[38]
Character
Further to its analysis, the majority found that Mr. Khorsand’s April 2021 background check failure did have sufficient public character to warrant judicial review.
Issue 2: Procedural Fairness
Issue overview of Procedural fairness
Based on Baker v Canada, the duty of procedural fairness is heavily context driven. The Supreme Court of Canada created a non-exhaustive list to analyze the fairness of a public decision.[39] This includes the impact of the administrative decision on the affected parties and whether the decision was made within the decision-maker’s statutory duties.
Before addressing procedural fairness, the Divisional Court rejected the Respondents’ argument that Mr. Khorsand waived his right to procedural fairness when he signed a consent form for a background check on March 30, 2021. To waive procedural fairness the waiver on the form must be explicit.[40]
The Nature of the Decision Being Made
The court in Baker said that if the administrative process is akin to a judicial process the decision receives higher procedural protection and a duty of fairness.[41] This means the determinations made must resemble the nature of judicial decision-making.
The Court said the background check was a requirement for employment and dismissed the Respondents’ argument that because the background check was in the pre-screen stage it wasn’t a formal judicial process. The Court agreed with the Respondents that a background check does contain sensitive information; nevertheless, there are procedures to protect sensitive information and disclose relevant information.[42] The background check as a requirement for any employment makes this akin to a judicial process.
The Nature of the Statutory Scheme
The second factor is how the decision operates within the statutory scheme, which determines the level of protection.[43] When legislation does not have an appeal procedure then the level of protection is higher. Currently there is not an appeal procedure.
Instead, the Police Services Act gives the board the power to appoint a Special Constable and the board has the discretion on how they implement the appointment process. Therefore, the Board owed a higher level of protection as the statute did not implement an appeal procedure.
The Importance of the Decision to the Individual Affected
A greater impact on the individual and the importance of the decision on the lives of those who are affected is another factor of the duty of fairness.[44] For this factor, the court explored the importance of employment in Mr. Khorsand’s life.
Employment is on the high end of the third factor in Baker.[45] The Supreme Court in Wallace v. United Grain Growers Ltd., employment is a “defining feature” in most people's lives.[46]
The Legitimate Expectations of the Person Challenging the Decision
The doctrine of legitimate expectations holds if a specific procedure will be followed then the duty of fairness requires that procedure to be followed.[47]
The Board did not give Mr. Khorsand any indication that they owed him procedural fairness. Even though Mr. Khorsand had no expectations of procedural fairness, it was triggered because it implicated the ‘rights, privileges or interests of an individual’.[48]
At the bare minimum, the Board should have given a notice to the reasons on why he failed his background check. The majority also addressed the concerns over the potential release of sensitive or privileged information in background checks in Suresh v. Canada (Minister of Citizenship and Immigration) 2002.[49] The Supreme Court held that, subject to privilege or violating public security, the respondent would be entitled to all other materials that the Minister relied on.
In this case, the Board could have redacted privileged or sensitive information from Mr. Khorsand. Ontario’s privacy laws allow law enforcement to withhold information from individuals under specific exemptions.[50] Since Mr. Khorsand was able to gain access to the materials not all the information was privileged or protected by law.
The Choices of Procedure Made by the Decision Maker
Lastly, if a statute leaves discretion to the decision maker or the procedure is chosen by the administrative body then the court must consider how this choice constrains the decision maker.[51] However, the court looks to balance the burdens placed on public authorities and how the outcomes affect citizens’ rights. The courts have recognized that police checks can be the subject of judicial review and are subject to the common law duty of procedural fairness.[52] The court will highly scrutinize the decision if it leads to unfair outcomes and human rights violations to marginalized groups.[53]
Mr. Khorsand, as a racialized individual, was barred from entering law enforcement by a police background check. This could be considered a human rights violation.
Breach of Procedural Fairness
Further to the analysis described above, the Court found that the Board breach the minimal duty of procedural fairness by not providing reasons for his failure and no opportunity to dispute the reasons for his failure.
Conclusion
Although the Board had a well-intentioned recruitment process, there are still discriminatory practices in that process that they may not have recognized. The beauty of administrative law is how citizens can keep public bodies accountable. When human rights violations occur, the courts can be a resource rather than a hindrance to racialized communities in the pursuit of justice.
Mr. Khorsand wanted answers and pursued the Board for accountability and transparency with their decision. Representation in law enforcement is crucial for relationship-building between police officers and racialized communities.
[1] Khorsand v. Toronto Police Services Board, 2023 ONSC 1270 at para 7
[3] “Special constables in Ontario”, online: Ontario Special Constable Association.
[12] Highwood Congregation of Jehovah’s Witness (Judicial Committee) v. Wall, 2018 SCC 26 at paras 13-15
[15] Khorsand v. Toronto Police Services Board, 2023 ONSC 1270 at para 49
[23] Air Canada v. Toronto Port Authority 2011 FCA 347 at para. 60
[24] R. v. Find 2001 SCC 32 paras at 94-96
[27] 2023 ONSC 1270 at para 80
[30] Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 122
[38] “OHRC statement on Toronto Police Service announcement on race-based data collection findings” online. Ontario Human Rights Commission
[39] Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at paras 21-22
[40] 2023 ONSC 1270 at paras 83-84
[42] 2023 ONSC 1270 at paras 85-86
[43] [1999] 2 SCR 817 at para 24
[44] [1999] 2 SCR 817 at para 25
[48] [1999] 2 SCR 817 at para 20
[50] S,14 (1) of Freedom of Information and Protection of Privacy Act
[51] [1999] 2 SCR 817 at para 27
[52] J.N. v. The Durham Regional Police Service and The Durham Regional Police Services Board, 2012
[53] 2023 ONSC 1270 at para 94
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