Defence lawyers association joins legal battle over Winnipeg police criminal record checks

A man embroiled in a legal dispute with the Winnipeg Police Service over its criminal record check policy now has the support of the Criminal Defence Lawyers Association of Manitoba.

Michael Kalo had sex-related charges against him stayed about a decade ago, but Winnipeg police nonetheless disclosed the non-conviction to an employer when Kalo filed for a criminal record check.

This spring, Court of Queen's Bench Justice Sheldon Lanchbery sided with Kalo in his complaint that the process was unfair, and ordered it be reviewed from Square 1 by Winnipeg police.

The force did just that in August in a one-on-one interview between a WPS member and Kalo.

Though the revised record check that resulted removed mention of a Family Division-issued restraining order, Insp. Paul Wowchuk ultimately upheld the original decision to disclose the stayed sex charge.

Kalo and the city both filed appeals. On Wednesday, a city lawyer appeared before Justice Lanchbery and asked for a stay of his original decision so that the appeal process could carry on, which Kalo consented to.

"Given the circumstances I've decided to sacrifice and agree to the stay so that the appeal can be heard for the benefit of all residents of Manitoba, because this matter goes beyond [me]," Kalo told CBC News.

'This is a test case'

On Thursday, Manitoba Court of Appeal Justice Barbara Hamilton approved a motion for intervenor status from the Criminal Defence Lawyers Association of Manitoba.

The non-profit advocacy group of 120 members will now join in on Kalo's ongoing legal fight with the City of Winnipeg police force over its record check policy.

"This is a test case in Manitoba for procedural fairness and the duties owed therein to formerly accused persons who have been freed from the constraints of the criminal law," reads a briefing note from Scott Newman, a lawyer with the defence lawyers association, that Hamilton referred to in her decision.

This case is about great injustice, and not just to me but to all residents of Manitoba who apply to receive a criminal records check certificate.- Michael Kalo

"This is a case which will have repercussions beyond the Winnipeg perimeter, and is a case which will reverberate across the province, and potentially across Canada, as non-criminal record disclosure concerns develop and modernize in many jurisdictions."

In March 2017, Kalo was asked by his new employer to obtain a criminal record check. The job involved transporting children with disabilities, so he required an enhanced record check known as a police vulnerable sector check.

Past checks always came back without the stayed charges, Kalo previously said.

The enhanced check, though, noted information about 2008 charges of sexual interference and sexual assault, as well as an active protection order against a former spouse. The two charges were later stayed.

'Judge, jury and executioner'

There is no formal framework in Manitoba designed to help authorities decide how details of non-convictions should be disclosed.

The Winnipeg Police Service's own policies for record checks give the reviewing officer final say over whether to disclose or omit mention of non-convictions, including in cases where an applicant may be a child sexual predator or previously was involved in fraud schemes but was never found guilty. 

In ordering the review, Justice Lanchbery compared that process to "the old adage of being judge, jury and executioner."

Kalo said he is glad to have the support of the defence lawyers behind him as the case works its way through the Court of Appeal.

"This case is about great injustice, and not just to me but to all residents of Manitoba who apply to receive a criminal records check certificate," he said Thursday before Justice Hamilton, reading a prepared statement. 

"I have little doubt that now, with the CDLAM on my side, I will be successful again, this time before our highest court."

With files from Jacques Marcoux