Besse v Calgary Police Service, 2021 ABQB 96

Court of Queen’s Bench of Alberta Citation: Besse v Calgary Police Service, 2021 ABQB 96 Date: 20210208 Docket: 1601 17227 Registry: Calgary Between: James Besse Appellant - and - Calgary Police Service, Calgary Police Service Commission, Roger Chaffin in His Official Capacity As Chief of Police for the Calgary Police Service, the Attorney General for Canada (Royal Canadian Mounted Police), Her Majesty the Queen In Right of Alberta, As Represented by the Minister of Justice and Solicitor General Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L.

Bernette Ho _______________________________________________________ [ 1 ] The Appellant, James Besse, has appealed the written decision of Master Prowse dated May 21, 2019 (“Prowse Decision”) wherein Master Prowse granted the application for

summary dismissal brought on behalf of the Calgary Police Service (“CPS”), Calgary Police Service Commission and Roger Chaffin in His Official Capacity as Chief of Police for the Calgary Police Service (collectively, “CPS Defendants). Paragraph 5 of the Appellant’s application filed September 26, 2019 (“2019 Application”) contains the basis for his submission that Master Prowse’s decision was incorrect, thereby meeting the test outlined in Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 . Paragraph 5 of the 2019 Application states:

This decision was based upon (

a) a misapprehension of the nature of the Plaintiff’s claims against the Calgary Police Defendants, and (

b) a key “fact” that the Calgary Police Defendants had asserted which the Plaintiff disputed (the “Key Fact”) as follows: “The plaintiff James Besse was required by the defendants at the Calgary Police Service to provide his fingerprints in order to obtain a Police Information Check (“PIC”) and a Vulnerable Sector Verification, which were required by Recreational Hockey Calgary so that Mr. Besse could be a volunteer hockey coach.” [ 2 ] I note at the outset that all of Mr. Besse’s criminal record and vulnerable sector verifications have always been returned with a “clean” result.

No aspect of this litigation involves Mr. Besse trying to hide a criminal record of any sort. Rather, as was noted by Master Prowse, Mr. Besse is a principled individual taking a principled position regarding police authorities’ ability to require fingerprints. [ 3 ] I also note that, as was made clear during the hearing held on January 22, Mr.

Besse seeks from the Alberta Court of Queen’s Bench a declaration that the CPS violated his human, constitutional and individual rights in 2012 by requiring him to obtain a vulnerable sector verification at first instance, which then led to him having to submit fingerprints when the Royal Canadian Mounted Police (“RCMP”) search results showed that he shared a common data point with a pardoned sex offender. It was submitted that Mr.

Besse should have been able to request a standard PIC, or criminal record check, without having to also obtain a vulnerable sector verification but the CPS, by virtue of its application form, forced Mr. Besse to obtain the PIC with vulnerable sector verification. Mr. Besse seeks no relief in regards to the CPS’s current protocols, policies or practices. I. Background A.

The Statement of Claim [ 4 ] The Appellant filed a Statement of Claim on December 21, 2016 seeking a declaration that a policy requiring fingerprinting as a condition precedent to obtaining a vulnerable sector criminal records check is unconstitutional because it is contrary to the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 . The Statement of Claim named the CPS Defendants, as well as the Attorney General for Canada (Royal Canadian Mounted Police) and Her Majesty the Queen in Right of Alberta, as represented by the Minister of Justice and Solicitor General. I was advised at the hearing that the action was essentially discontinued at the outset as against Her Majesty the Queen in Right of Alberta. [ 5 ] The Statement of Claim outlined that prior to 2012, Mr. Besse had “8 to 10 vulnerable sector criminal record checks” performed by the CPS and they all came back clean.

He had never been requested to be fingerprinted. However, in November 2012, Mr. Besse learned that he was required to attend for fingerprinting because his date of birth was the same as a registered sex offender who had been pardoned. Mr. Besse was told that the mandatory fingerprinting was required by federal regulation, federal ministerial directive or RCMP policy or all of them. [ 6 ] Paragraph 19 of the Statement of Claim states that Mr.

Besse was shocked to have to undergo this “new and intrusive violation of his privacy” and that he “felt cornered and unable to refuse because his children and his community counted on him to volunteer and provide his experience.” Then, at paragraph 20 of the Statement of Claim, it is alleged that Mr. Besse did not consent to being fingerprinted, or in the alternative, his consent was not an informed one or was otherwise coerced or invalid. [ 7 ] Paragraph 23 of the Statement of Claim states that the Calgary Police never obtained a warrant and had no reasonable grounds for fingerprinting Mr.

Besse. [ 8 ] The remedy sought as against all Defendants reads as follows: 29. The Plaintiff seeks: (

a) A declaration that the present policy of requiring fingerprints from every person who requests a vulnerable sector verification and shares the birthday of a sex offender is contrary to the Charter and therefore unconstitutional. (

b) A declaration that any regulations or legislation, including but not limited to the Criminal Records Act , or regulations requiring such fingerprinting is of no force or effect only to the extent it requires fingerprinting without discretion. To be clear, the Plaintiffs position is that the offending unconstitutional provisions can be severed. [sic in original] B. Master Farrington’s Prior Decision [ 9 ] On May 30, 2018, Master Farrington granted an application for dismissal of Mr. Besse’s claim, brought by the Attorney General for Canada (Royal Canadian Mounted Police).

Master Farrington reviewed section 18(1) of the Federal Courts Act , RSC 1985, c F-7 , which provides that the Federal Court has exclusive jurisdiction to grant declaratory relief against a federal board, commission or other tribunal. Therefore, Master Farrington dismissed the claim on jurisdictional grounds and his decision was not appealed. [ 10 ] Following the release of Master Farrington’s decision, the Appellant filed an action in the Federal Court of Canada bearing Action Number T-1075-18.

The Statement of Claim filed in the Federal Court mirrors the Statement of Claim filed in the Alberta Court of Queen’s Bench in many respects, except that in some paragraphs, references are made to the RCMP rather than the CPS. Also, the allegations detailing interaction between the Appellant and the Calgary Police in 2012 are the same. Also, the declaratory relief sought is identical to that found in the Alberta Court of Queen’s Bench Statement of Claim. Counsel for the Appellant noted during the hearing before me that the Federal Court Statement of Claim is in the process of being amended.

II. The Application before Master Prowse [ 11 ] The CPS Defendants filed an application for

summary dismissal on the basis that the “policy” at issue in the Statement of Claim was implemented by the RCMP, and given Master Farrington’s decision, there was no basis for Mr. Besse’s claim to continue against the CPS Defendants alone. A. Mr. Besse’s 2018 Affidavit evidence and examination [ 12 ] From 2006 to 2012, the Appellant had several criminal record checks completed.

Several of these checks were generally undertaken so that he could volunteer with organizations to support his sons’ activities, whether related to school or their recreational endeavours. [ 13 ] In November 2012, the Appellant received notification that he had to follow up with 311 to book an appointment with the CPS in regards to his most recent request for a criminal record check. The Appellant had submitted a request for a criminal record check in order to act as a volunteer with Recreational Hockey Calgary (“Rec Hockey”).

After several discussions, the Appellant learned that he needed to attend a CPS station in order to be fingerprinted because he shared a date of birth with a pardoned sex offender. When he asked why he needed to be fingerprinted, the Appellant was apparently advised that in July 2012, the RCMP changed their database query methodology and a common match amongst 2 of the 3 data parameters (applicant’s name, gender or date of birth) required an applicant to be fingerprinted. [ 14 ] The Appellant queried whether there were other, less-intrusive means that could be followed by the RCMP or CPS.

The Appellant deposed that he was left with the impression that he had to submit to the fingerprint requirement in order to obtain a clean result, or refuse, which would lead to him not receiving any result and having members of his community suspect that he had been convicted of a sexual offence. [ 15 ] When the Appellant went for fingerprinting, he advised the technician and other CPS personnel that he did not agree to being fingerprinted.

During questioning on affidavit held on November 21, 2018, the Appellant testified at page 24, lines 10 to 20: …I was very explicit with the fingerprint tech and it was witnessed by the other fingerprint tech, and there was another applicant in there that: One, I am under duress; two, I am being coerced; three, I am not volunteering to be fingerprinted; four, this is a violation of my constitutional charter rights; and five, I have a complaint in to Calgary Police Professional Standards.

At which point the fingerprint tech said: “Oh, I don’t know why they just don’t check the Name Change database.” [ 16 ] He further deposed that he did not voluntarily attend the police station and never consented, orally or in writing, to having his fingerprints taken. [ 17 ] He subsequently received a document dated November 27, 2012 indicating that he had a clean criminal record check and vulnerable sector verification (i.e. “no name changing pardoned sex offender” status). B.

Affidavits of Sherri Faucher [ 18 ] There were 2 Affidavits of Sherri Faucher before Master Prowse, the first filed February 23, 2018 (“Faucher 2018 Affidavit”) and the second filed February 8, 2019 (“Faucher 2019 Affidavit”). [ 19 ] The Faucher 2018 Affidavit described the CPS as being a member agency of the Canadian Police Information Centre (“CPIC”), which is a central police information database administered and maintained by the RCMP. Ms. Faucher deposed that in October 2012, Mr. Besse applied for a PIC for the purpose of holding a volunteer coaching position with Rec Hockey.

She deposed that the checkbox for “13. I will be working/volunteering with: children/youth” had been ticked on Mr. Besse’s application. As far as Ms. Faucher was aware, Rec Hockey required that a PIC with Vulnerable Sector Verification be obtained. She further deposed at paragraph 7 that “[a]t no time was the requirement for [Mr. Besse] to apply for a PIC and Vulnerable Sector Verification mandated or required” by the CPS Defendants. [ 20 ] Mr. Besse’s name, gender and date of birth were searched on the CPIC database, the Justice On-line Network (“JOIN”) and the CPS Police Information Management System (“PIMS”).

The name-based searches did not reveal any criminal convictions, outstanding charges or police incidents on the CPIC, JOIN or PIMS databases. [ 21 ] CPS personnel took steps to also complete a Vulnerable Sector Verification which searches name, gender and date of birth against the RCMP’s pardoned sex offender database. Upon conducting this search, a possible “hit” to a pardoned sex offender was identified. [ 22 ] Ms. Faucher deposed that, in accordance with RCMP policy and

section 6.3 of the Criminal Records Act , RSC 1985, c C-47 , because a possible “hit” was identified against Mr. Besse’s gender and date of birth in the pardoned sex offender registry, CPS was mandated by RCMP policy and federal legislation to obtain Mr. Besse’s fingerprints so that a fingerprint-based Vulnerable Sector Verification could be conducted. [ 23 ] After receiving correspondence indicating that he was required to attend at a CPS station for additional information, Ms. Faucher deposed that Mr.

Besse was told by 3 CPS representatives that his fingerprints were required and: He was also advised if he chose not to submit his fingerprints his PIC would be completed without the vulnerable sector verification and advised him it would state on his PIC letter that the vulnerable sector search was not completed: para 16. [sic in original]

[ 24 ] Ms. Faucher also deposed that Mr. Besse “voluntarily attended at PICU on November 27, 2012 whereupon, with his consent, his fingerprints were electronically scanned and submitted” to the RCMP for verification of his identity: para 18. [ 25 ] Exhibit G to the Faucher 2018 Affidavit is a communication dated July 19, 2010 sent by the RCMP and addressed to all CPIC Agencies. The RCMP instituted enhancements to the CPIC system for querying flagged pardoned sex offender records, commonly referred to as a Vulnerable Sector query.

The communication also stated: When a [Vulnerable Sector] query is inconclusive as to the existence of a pardoned sex offender record, a police service must: (1) take the individual’s fingerprints on a form C-216C; (2) ensure that all form C-216C fields are correct and legible; (3) indicate the position for which the individual is applying. … (4) submit a signed and completed consent form that enables the verification to be conducted, and; (5) send the form C-216C and other applicable documentation to the Canadian Criminal Real Time Identification Services (CCRTIS) in Ottawa. … [ 26 ] The Faucher 2018 Affidavit included an excerpt from the Criminal Records Act .

The relevant portions of

section 6.3 state:

(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) is in a position of dependency on others; or (

b) 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.

(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 for an offence listed in

Schedule 2 in respect of which a record suspension has been ordered.

(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) the position is one of trust and authority towards that child or vulnerable person; and (

b) the applicant had consented in writing to the verification. [ 27 ] The Faucher 2019 Affidavit attached as Exhibit A correspondence from the Registrar of Rec Hockey dated February 5, 2019. In the letter, the Registrar outlined that Rec Hockey required volunteers to provide a PIC with Vulnerable Sector search for as long as Rec Hockey had been in existence, which apparently was 2009. This information was later clarified in a subsequent affidavit submitted by Mr. Besse, after Master Prowse’s Decision was issued. C. Master Prowse’s Decision [ 28 ] Master Prowse granted the CPS Defendants’ application for

summary dismissal on the day he heard it, with written reasons to follow. In his written reasons, he took his background “mostly verbatim” from the written submissions of the defendants. [ 29 ] Master Prowse reviewed that the Attorney General for Canada (Royal Canadian Mounted Police) was previously defendants in the action until Master Farrington dismissed the action against them on jurisdictional grounds. Master Prowse then wrote: [8] Master Farrington’s written reasons are reported at 2018 CarswellAlta 1073 ; 2018 ABQB 424 . The following two paragraphs illustrate the foundation of his ruling: 11.

With declaratory relief being the primary relief sought here, section 18(1) [of the Federal Courts Act ] would appear o end the matter. Section 18(1) says that the Federal Court has exclusive original jurisdiction to grant declaratory relief against any “federal board, commission or other tribunal”. The term “federal board, commission or other tribunal” is defined in the Federal Courts Act , and the parties agree that it is a broad one, and that it applies to the RCMP. Accordingly, without more, the declaratory relief sought against the RCMP must be sought at Federal Court. 26.

While section 18(1) of the Federal Courts Act cannot exclude the jurisdiction of this Court to draw appropriate lines between federal and provincial laws, there is nothing constitutionally objectionable about it requiring that federal laws and policies otherwise be reviewed in the Federal Court. As a result, I must give effect to the clear wording of section 18(1) of the Federal Courts Act . [9] Master Farrington’s ruling was not appealed. Instead, Mr.

Besse commenced identical proceedings against The Attorney General for Canada (Royal Canadian Mounted Police) in Federal Court. [ 30 ] In preparation for the hearing before him, Master Prowse had asked counsel to prepare a draft of the judgment he hoped to obtain from the Alberta Court of Queen’s Bench if the matter went to trial or

summary trial. This is what Mr. Besse’s counsel submitted: It is hereby ordered and adjudged:

The present practice of requiring fingerprints from every person who requests a criminal record check, and who subsequently requires a secondary verification of that person’s identity when searching the pardoned sex offender database, is contrary to the Charter and is therefore unconstitutional.

Any legislation or regulation, including but not limited to the Criminal Records Act , which requires fingerprinting of a person who requests a criminal record check, and who also requires a secondary verification of that person’s identity when searching the pardoned sex offender database, is of no force and effect to the extent that the legislation or regulation requires applicants obtaining a criminal record check to provide fingerprints.

The Calgary Police Service, and all other police services or governmental entities in Alberta who perform criminal records checks, are hereby ordered to provide the results of the criminal records check to the requesting person or entity without requesting or compelling the person seeking the criminal records check to provide any fingerprints.

Should an initial criminal records check indicate that a secondary verification of that person’s identity be performed the Calgary Police Service, or by any other police services or governmental entities in Alberta who perform criminal records checks, such secondary verification of that person shall be conducted using alternate means. (hereinafter referred to as “Counsel’s Draft Judgment”) [ 31 ] Master Prowse considered Counsel’s Draft Judgment and Master Farrington’s decision. He concluded that Mr.

Besse was trying to do indirectly that which he could not do directly, which was to seek declaratory relief in relation to a policy that was implemented by the RCMP. Because Mr. Besse was requesting relief that the Alberta Court of Queen’s Bench did not have jurisdiction to grant, Master Prowse allowed the Respondents’ application and summarily dismissed Mr. Besse’s claim. [ 32 ] Ten days after Master Prowse’s written decision was released, the Appellant filed a Notice of Appeal. III.

The Appellant’s 2019 Application [ 33 ] The 2019 Application sought an order extending the time for an appeal of Master Prowse’s decision. Mr. Besse wished to amend the Statement of Claim to particularize the claim and relief sought against the CPS Defendants, file additional evidence, conduct further questioning of the CPS Defendants and file further written argument within a reasonable time after all questioning, undertakings and evidence collection were complete. Mr. Besse also requested such ancillary orders or directions as necessary or desirable to enable the presentation of Mr.

Besse’s claim against the CPS Defendants on “its true merits.” [ 34 ] Justice McCarthy issued an order on October 1, 2019 directing that the 2019 Application be heard at a special chambers application. [ 35 ] The brief filed on behalf of the Appellant asked for an order granting the appeal and directing that Mr. Besse be permitted to proceed with the action for a determination on its merits. He also asked for the following procedural orders: (

i) extending the time frame for filing and serving additional evidence and written argument, (ii) deeming a further sworn affidavit relevant and material and (iii) granting leave to file all written materials and additional evidence relied on for the appeal. The Appellant did not seek relief to amend the Statement of Claim or to conduct further questioning before me. These aspects of the Appellant’s application were adjourned on a sine die basis by his counsel. A. Mr. Besse’s September 2019 Affidavit [ 36 ] Mr.

Besse filed an affidavit in September 2019 that repeated some of the evidence that was before Master Prowse but also included paragraphs intended to rebut evidence contained in the Faucher 2018 Affidavit and Faucher 2019 Affidavit (“Besse 2019 Affidavit”). The Respondent conceded that the Besse 2019 Affidavit was relevant and material to the issues before me, but argued that it contained hearsay and otherwise inadmissible evidence. Therefore, it was submitted that I could not or should not rely upon the contents of the Besse 2019 Affidavit, or it ought to be ascribed minimal weight. [ 37 ] Mr.

Besse deposed that to the best of his recollection, he did not sign a form similar to that attached as Exhibit A to the Faucher 2018 Affidavit. He detailed the differences that he believed to exist based on his recollection from 2012 and indicated he “was completely unaware of what ‘VS’ or ‘vulnerable sector’ stood for, or that it was a different sort of police information check than an ordinary criminal record check. No one at Rec Hockey ever mentioned the terms ‘VS’ or ‘vulnerable sector’ or if anyone did, certainly no one ever explained it.

Nor was any such information, forms or explanations available at Rec Hockey or on its website. …”: Besse 2019 Affidavit at para 5. [ 38 ] Mr. Besse also included information respecting his conversations with the Rec Hockey PIC Coordinator in 2012 and the Rec Hockey Board of Directors in early December 2012. According to Mr. Besse, Rec Hockey’s Coordinator told him in 2012 that Rec Hockey only required a regular criminal record check and nothing that would require fingerprinting.

He deposed that the Board of Directors also informed him that all Rec Hockey ever required was a regular criminal records search, not any process that involved fingerprinting. This evidence from Mr. Besse clearly constitutes hearsay. [ 39 ] Mr. Besse also made a formal complaint on November 13, 2012 about CPS’s demand for fingerprints, before he provided his fingerprints on November 27, 2012.

He had a further conversation with CPS personnel on November 13, 2012 who acknowledged that the CPS could check a CPS name change database, “but that RCMP requires fingerprints without which they would not release the criminal records check”: Besse 2019 Affidavit at para 11. The week following, a CPS Constable reiterated to Mr. Besse that “the Fingerprint Demand was the feds’ requirement and could not be waived”: Besse 2019 Affidavit at para 13. [ 40 ] When Mr. Besse attended on November 27, 2012 to provide his fingerprints, he told everyone he encountered that he was

there under duress, was being coerced and was not volunteering to be fingerprinted. He also said his constitutional Charter rights were being violated and that he had submitted a complaint to the CPS Professional Standards Section. He did this because he was only provided with an electronic consent form so he was not in a position to express his opposition in writing. According to Mr. Besse, the electronic screen presented to him in 2012 did not look like the electronic consent form provided by the CPS in response to an undertaking given at questioning.

In particular, in 2012, it was only a single page, had no French language and did not have choices on the bottom saying “I Authorize” and “I DO NOT Authorize.” [ 41 ] In a

section titled “Recently Acquired Information,” Mr. Besse also included information that arose out of questions posed by his new counsel to representatives of Rec Hockey. Mr. Besse provided copies of recent email correspondence between his counsel and Rec Hockey representatives, as well as minutes from the December 2012 Board of Directors meeting that he attended to inquire about the need for fingerprints.

The minutes do not include details of the conversation before the Board but confirm that there was an agenda item, “Introduce Guest & Discussion on Calgary Minor Hockey Finger Print Policy.” The Board members apparently indicated that they were also confused about the request for fingerprints and told Mr. Besse that “Rec Hockey never sought anything other than a search on whether I had any committed any criminal offenses” [sic in original]: Besse 2019 Affidavit at para 25. Mr.

Besse was also informed that “an astonishing number of volunteers received a fingerprint demand that year”: Besse 2019 Affidavit at para 25. [ 42 ] Exhibit D to the Besse 2019 Affidavit consisted of communications between Mr. Besse’s new counsel and the Registrar who provided the letter included in the Faucher 2019 Affidavit. Exhibit D included a signed, but unsworn, statement from the Registrar that stated: 4. With respect to Ms.

Ulku’s queries about what I recall RHC’s PIC procedure was in 2012, and specifically about whether RHC required just a criminal record check or also a vulnerable sector (VS) check, I informed Ms. Ulku that everyone at RHC used these terms interchangeably in 2012 and even still now. No one understood that there is any difference. Registrars…the directors, everyone talked about needing to have a “criminal record check”. What came back appears to have been a VS check. To us both are one and the same. In 2012 we (everyone at RHC) probably would have talked about the PIC process as “a criminal record check” to Mr.

Besse and to all other coaches and volunteers. I think, now, that the PICs came back as VS checks. 5. As to Ms. Ulku’s final question during our discussion: what was the source of my information when I wrote the letter for Sherri Faucher dated January 5, 2019 regarding ‘RHC has always required a BS check since inception’ I responded: “I made a mistake. I thought that is what we always did because to me the PIC process was the same process (called different names).

There were a few changes since she took over [the former Coordinator’s responsibilities], but they were little changes.” [ 43 ] Exhibit E to the Besse 2019 Affidavit included communications between Mr. Besse’s former counsel and the Executive Director of Hockey Calgary dated December 2018. This communication was, therefore, available to Mr. Besse prior to the hearing before Master Prowse.

Paragraphs 3 and 4 of an email from the Executive Director stated: …we have no information as to what the requirements were for volunteers at Recreational Hockey Calgary in 2012, nor would we have any idea of the identity of a person spoken to, or liaised with, from that Association. As I am sure you are aware these societies are volunteer driven organizations with a high degree of turnover. I myself was not employed by Hockey Calgary at that time, and have no knowledge of who was leading the Rec Hockey Organization at that time. Hockey Calgary would not have been the organization who requested that Mr.

Besse attend for finger printing. At most there may have been some direction for our member Associations to have some type of ‘Screening Process’, but there would be no requirement for finger printing. [ 44 ] Mr. Besse then deposed at para 30: It is clear that no one at Rec Hockey appreciated the specific types of records checks that the PIC Application Form provided by the CPS to Rec Hockey for screening volunteer coaches required, or even understood that there was any difference between a search of the Active Records Database as being distinct from a VS, or a Pardoned Offender Database, search.

Everyone that I spoke with at Rec Hockey in 2012 had no appreciation that different and distinct background searches were available through the CPS. This, and the realization that they did not even appreciate that they had any say or choices on the issue of whether or how to conduct screening, is my counsel’s takeaway from her discussions with [the Registrar] and [Executive Director]. [ 45 ] The next portion of the Besse 2019 Affidavit was titled “Potential Errors of Law by the CPS” wherein Mr. Besse addressed CPS’s purported misconception that

section 6.3 of the Criminal Records Act , federal Ministerial Directives or RCMP policies mandate or oblige a vulnerable sector search. In particular, he deposed at paras 33 and 34: I do not quarrel that a VS search for screening may be recommended by the RCMP, but the choice of whether to “request” it or not rests with the organization requesting a screening in respect of an applicant by the clear and explicit words used in

section 6.3(3) of the Criminal Records Act . The CPS had no authority to dictate to organizations that they MUST require a VS search on everyone by pre-populating the VS Notation on all PIC Application Forms and by failing to educate organizations as to the variety of screening processes available that they may choose from as they deem, in their own discretion, necessary or appropriate for their own organization’s particular circumstances as well as the particular circumstances of each individual applying to work with youth.

It is, or ought to be within the context of our free and democratic society, within an organization’s own discretion whether and to what extent they wish to perform due diligence on each individual. [ 46 ] Several of the following paragraphs then outlined Mr. Besse’s belief that CPS engaged in unlawful use of its authority and violated his civil and constitutional rights. [ 47 ] The final

section of the 2019 Besse Affidavit then addressed questions about CPS’s failure to produce requested documents, or CPS’s destruction of documents in accordance with its internal document retention policy.

IV. Test for

Summary Judgment [ 48 ] The leading authority in Alberta outlining the test for

summary judgment is Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 . The Alberta Court of Appeal reiterated the three-part test formulated by the Supreme Court of Canada in Hryniak v Mauldin , 2014 SCC 7 where at paragraph 49 , the Supreme Court wrote: There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 49 ] In Weir-Jones , the Court of Appeal also made it clear at para 25 that “[i]f the record allows the judge to make the necessary findings of fact and apply the law, then the

summary procedure should be used unless there is a substantive reason to conclude that

summary disposition would not ‘achieve a just result’.” [ 50 ] With respect to the burden of proof, the Court of Appeal indicated that the “threshold burden on the moving party with respect to the factual basis of a

summary judgment application is therefore proof on a balance of probabilities”: Weir-Jones at para 33. Also, “the ultimate burden remains on the moving party to establish that there is no genuine issue requiring a trial, and that a fair and just adjudication is possible on a

summary basis”: Weir-Jones at para 35. [ 51 ] The existence of conflicting evidence on the record does not necessarily preclude

summary judgment if a judge is confident that based on the record available, the dispute may be fairly resolved: Weir-Jones at para 36. The sufficiency of the record will depend upon the particular circumstances of the case. [ 52 ] Importantly, the Court reiterated the following at paragraph 37: Even before Hryniak v Mauldin it was established that the parties to a

summary disposition must “put their best foot forward”: Canada (AG) v Lameman , 2008 SCC 14 at para 11 . One could not resist

summary disposition, or create a “genuine issue requiring a trial” by speculation about what might turn up in the future. … [ 53 ] Finally, the Court at para 47 provided the following

summary of principles: … The key considerations are: (

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial? (

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication. (

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available. (

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. … A. Analysis [ 54 ] Having regard for the test for

summary judgment and the evidence before me, I dismiss the Appellant’s appeal for the reasons outlined below. [ 55 ] The Appellant argued that Master Prowse erred in two ways. [ 56 ] First, the Appellant submitted that Master Prowse “misapprehended” the nature of the Appellant’s claim as against the CPS largely because he failed to seize upon paragraph 3 of Counsel’s Draft Judgment and recognize that the Alberta Court of Queen’s Bench could grant relief as against the CPS separate from the Federal Court action.

For ease of reference, paragraph 3 of Counsel’s Draft Judgment is repeated here: The Calgary Police Service, and all other police services or governmental entities in Alberta who perform criminal records checks, are hereby ordered to provide the results of the criminal records check to the requesting person or entity without requesting or compelling the person seeking the criminal records check to provide any fingerprints. [ 57 ] The paragraph seeks direction in relation to the CPS and Alberta police services who are within the jurisdiction of the Alberta Court of Queen’s Bench.

However, to make the requested order would require this Court to override or ignore the RCMP policy around fingerprinting where a vulnerable sector verification does not come back clear. Therefore, Master Prowse was correct when he noted that the Appellant sought declaratory relief driven by RCMP policy, and that the Appellant should not be permitted to seek relief indirectly after being directly prohibited from such relief by virtue of Master Farrington’s decision.

[58] During argument before me, Mr. Besse’s new counsel also stated that she could “work with” paragraph 3 of Counsel’s DraftJudgment, with a few amendments. However, Counsel’s Draft Judgment is not a formal pleading, nor does it form the basis for anapplication to amend the Statement of Claim. As already noted, counsel did not proceed with this application before me. [59] Notably, paragraph 16 of the Statement of Claim states: Mr.

Besse was told and believes that this mandatory fingerprinting was required by federal regulation, or federal ministerial directive, orby Royal Canadian Mounted Police policy or by all of them. [60] In addition, paragraph 23 of the Statement of Claim reads: The Calgary Police never obtained a warrant and had no reasonable grounds for fingerprinting Mr. Besse. [61] Therefore, the language in the Statement of Claim supports Master Prowse’s conclusion that the continuation of Mr. Besse’sclaim is tied to the Federal Court action.

Master Prowse did not misapprehend the claim before him. [62] Though not specifically outlined in written submissions filed for this appeal, counsel submitted that there were four things thatthe CPS allegedly did wrong in 2012 and these arguments would be advanced if Mr. Besse’s action were permitted to continue. The fourthings were: (

a) CPS wrongfully and without lawful authority funneled Mr. Besse into a vulnerable sector verification process that was notrequested; (

b) CPS wrongfully and without lawful authority denied Mr. Besse’s repeated requests to receive his own criminal record checkwithout a vulnerable sector verification; (

c) CPS proceeded to take Mr. Besse’s fingerprints without having his consent as required by the Criminal Records Act,regulations enacted pursuant thereto and RCMP policy; and (

d) CPS took Mr. Besse’s fingerprints over his expressed objections that he was there by coercion and duress. [63] I will first address the allegation that Mr. Besse was unnecessarily forced by the CPS to request a vulnerable sectorverification.

I consider this to be substantively similar to the second argument advanced by the Appellant on appeal, that Master Prowsemade an error in relation to a “Key Fact.” The Appellant asserted that Master Prowse erred when he found as a fact that: “The plaintiffJames Besse was required by the defendants at the Calgary Police Service to provide his fingerprints in order to obtain a PoliceInformation Check (“PIC”) and a Vulnerable Sector Verification, which were required by Recreational Hockey Calgary so that Mr.Besse could be a volunteer hockey coach.” [64] Mr.

Besse submitted that a volunteer is required to undertake a vulnerable sector verification, only at the request of theorganization in which the volunteer seeks to work. He relied upon the language of

section 6.3(3) of the Criminal Records Act in supportof his position.

Section 6.3(3) states: 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 anapplication is made for a paid or volunteer position, a member of a police force or other authorized body shall verify whether theapplicant is the subject of a notation made in accordance with subsection (2) if (

a) the position is one of trust or authority towards that child or vulnerable person; and (

b) the applicant has consented in writing to the verification. [emphasis added] [65] In this case, Mr. Besse submitted that, based on his conversations with the Rec Hockey Coordinator and Board of Directors in2012, Rec Hockey did not require a vulnerable sector verification.

Instead, the requirement to obtain a vulnerable sector verification wasimposed upon him by CPS by virtue of having included box 13 on the PIC application form, which states: “I will beworking/volunteering with: Disabled, Children/Youth, Elderly, Patients, N/A,” and beside which was another box marked CPS use onlyand the letters “VS.” Instead, it was argued that CPS ought to have had a form for a standard PIC, or criminal record check, and adifferent form for when a vulnerable sector verification was also required. [66] Paragraph 13 of Mr.

Besse’s Statement of Claim states: It is impossible to volunteer in minor league hockey without providing a clean vulnerable sector criminal records check. Rec HockeyCalgary policy requires this check because it believe that to do otherwise would expose it to massive liability if, for example, a convicteddrug dealer or sex offender were allowed to volunteer. [sic in original] [67] Again, this has not been amended or removed, nor was the application to amend Mr.

Besse’s Statement of Claim before me.While counsel provided me with authority that suggested that I am not bound by the relief that is expressly claimed in a litigant’s prayerfor relief, the same authority found in relation to rule 13.8 of the Alberta Rules of Court makes clear that I am to look at the facts pled ina Statement of Claim for the causes of action disclosed: Winget v Safeguard Business Systems Ltd (1993), (ABKB), 139 AR 81 (QB); KVR Electric Ltd v Edgar (1994), (AB KB), 163 AR 147 (QB). In this case, Mr.

Besse nowseeks to advance an argument entirely contrary to the contents of paragraph 13 of his Statement of Claim. It is trite law that a litigant isnot permitted to surprise the other party with new facts or allegations that are not disclosed in a Statement of Claim. [68] Quite apart from the contents of paragraph 13 of the Statement of Claim, I cannot conclude that the evidentiary recordsupports Mr. Besse’s assertion. While the Rec Hockey Coordinator and Board of Directors reportedly claimed to be “confused” about

the need to provide fingerprints in 2012, I do not consider the evidence to support the argument that a vulnerable sector search was not required at first instance and was solely imposed upon Mr. Besse by CPS. At best, it could be argued that Rec Hockey representatives were confused about what a criminal record check and vulnerable sector verification entailed.

However, the evidence establishes that the terms were used interchangeably, so if there was confusion, it was at the Rec Hockey level and I reject the argument that it was the CPS’s legal duty to educate them about the difference. [ 69 ] Moreover, the current Registrar indicated that Rec Hockey does require vulnerable sector verifications to be obtained by volunteers. Even if I were to admit the hearsay statement included in the Besse 2019 Affidavit, the mistake described by the current Registrar is limited. The statement she signed, which was prepared by Mr.

Besse’s current counsel and intended to correct the Faucher 2019 Affidavit, reads: “I made a mistake. I thought that is what we always did because to me the PIC process was the same process (called different names). There were a few changes since she took over [the Coordinator’s] coordinating responsibilities, but they were little changes.” In other words, though her statement attached to the Faucher 2019 Affidavit stated the Rec Hockey has required a vulnerable sector verification since the organization’s inception in 2009, she clarified that she too was confused.

She went on to say that there have been few changes since she took over from the Coordinator who acted in the same capacity in 2012. Therefore, from Rec Hockey’s perspective, the standard PIC process and the process requiring a vulnerable sector search were the same. This does not prove, however, that Rec Hockey did not require a vulnerable sector search to be conducted at all, nor does it prove that the CPS should be held liable for Mr. Besse having to undergo a vulnerable sector search at first instance. [ 70 ] With regards to the allegation that CPS denied Mr.

Besse’s requests for a criminal record check without the vulnerable sector verification, again, I cannot conclude the evidence supports this allegation such that this action should be permitted to continue. Mr. Besse deposed that Constable Kevin told him that he could not have the results of his criminal records check without the vulnerable sector verification being completed. However, this is in direct conflict with the evidence contained in the Faucher 2018 Affidavit where Ms.

Faucher deposed that a form of criminal record check could have been released by CPS without the vulnerable sector verification component. [ 71 ] Mr. Besse’s counsel raised a number of other points during the hearing, like Mr. Besse did not know what “VS” stood for and that he was concerned that other parents or representatives of Rec Hockey would infer that he had something to hide if he did not produce a vulnerable sector verification. It was also submitted that Mr.

Besse was under additional pressure to go along with submitting his fingerprints because the hockey season had already commenced and he did not want to disappoint his son by ceasing to volunteer with his hockey team. With respect, Mr. Besse could have asked what the letters VS stood for, and CPS cannot be held responsible for Mr. Besse’s own conclusions about inferences that might have been drawn by third parties or possible impacts on his son and his hockey team. [ 72 ] With regards to the other requirements outlined by

section 6.3(3) of the Criminal Records Act , Mr. Besse conceded that as a volunteer hockey coach, he was acting in a position of trust or authority towards a child or vulnerable person. However, he argued that CPS did not comply with the requirement outlined at

section 6.3(3) (

b) of the Criminal Records Act because they did not obtain his consent in writing, and the form of consent did not conform with legal requirements. Specifically, Mr. Besse disputed that the form of consent that was included in CPS’s evidence, which is the current language presented to an applicant requiring fingerprints, was the same form that was presented to him in 2012. He outlined his recollection of several material differences. Though lengthy, it is worthwhile to review Mr.

Besse’s testimony from questioning on affidavit conducted November 21, 2018, starting at page 32, line 19: Q: So the one you say in 2012 was different than this? A: Correct. Q: Do you have any information to suggest that this is not the current screen? A: I don’t know what the current screen is other than what was produced there by – Q: So the answer is you have no information – A: That’s correct. Q: -- as to whether this is the current screen? A: I have no information whether that is the current one or not.

It is not the one I pressed there when the video screen disclaimer came up when I made my comments that I am under duress and being coerced. If there had been a written waiver available we would not be having this discussion. It would have been real clear and explicit that I was not volunteering for this. Q: So did the one you press did it have buttons at the bottom that said “I authorize or I do not authorize”? A: No.

It was like a one screen shot, there was at least one paragraph, might have been two and the fingerprint tech was very explicit “now you have to press this.” And that is the point where I said, “No, I am under duress, I am being coerced, I am not volunteering for this.” Q: What did she ask you to press? A: The video screen disclaimer. Q: Which was how many paragraphs? A: It was either one or two and it was certainly obfuscation because it wasn’t clear and explicit about why you are being fingerprinted. It had to deal with fed regulations. There are no regulations in Alberta that govern this sort of thing.

When I spoke up and she said, “Oh, I don’t know why they just don’t check the name change database.” This was certainly witnessed by the other fingerprint tech and the

other fingerprint applicant who looked like the hockey date like myself but he turned around and looked at this little drama and you could clearly tell that he had no clue whatsoever what was going on. The CPS legal counsel doesn’t know what full disclosure and informed consent is. Q: Was the screen that you saw, could you read the entire waiver in one screen or did you have to scroll? A: No. It was a one page. Q: One screen shot? A: One screen disclaimer. Q: So there is no scrolling down? A: No, sir. Q: And there was no buttons that said “I authorize or I do not authorize”? A: Correct.

And I pressed the video screen disclaimer. Q: And I take it at the end where its says “subject’s left thumb has been successfully captured for the purposes of fingerprint endorsement” that was not something on your screen? A: No. The fingerprint tech took my five ones, scanned them into whatever they do, it was all electronic. She is there typing away. Q: How did they get sent? A: After I pressed the video screen disclaimer, that’s the condition for sending them to the RCMP. Their testimony is that you said that I volunteered for it, that’s in the Privacy Commissioner of Canada’s report.

Q: Do you recall what the disclaimer, or what the wording said? A: You’ve got to appreciate that’s pretty difficult, Mr. Floyd, for me to recall. I looked at it for probably more than ten seconds, less than twenty seconds, I saw clearly that it was fabricating artificial consent. I made my comments to the fingerprint tech. Q: But did you read it? A: Yeah, sure. Q: Can you just give me, I understand it has been six years. A: It was one of these, you know, according to blah-blah statute subclause this or dah, day, hah, you volunteer to your fingerprints for this or that. Q: And that’s all it said?

A: When you say “all it said” it was more than one, it could have been two, it was all there on one screen. It wasn’t coming from the Calgary Police Service because they were referencing federal statute, federal regulations. … [ 73 ] In my view, Mr. Besse’s evidence does not establish on a balance of probabilities that the form presented to him in 2012 was not in accordance with the legal requirements of the Criminal Records Act , regulations enacted thereunder or RCMP policy in 2012. Even if different from the current consent form being used, Mr.

Besse’s testimony does not give rise to a triable issue or a question that merits conduct of a full trial. [ 74 ] Mr. Besse also confirmed during questioning on his affidavit that no one physically compelled him to attend at the CPS station for fingerprinting in November 2012, nor did anyone physically touch him or force him to place his hands to be fingerprinted. I consider paragraph 17 of Mr. Besse’s Statement of Claim to be an apt description of what occurred: On or about November 27, 2012, Mr. Besse attended at the Calgary Police Westwinds building.

He told police officers in attendance that he did not consent to fingerprints being taken. He eventually reluctantly allowed an image of his fingerprints to be taken because otherwise Mr. Besse would not be able to continue volunteering and doing what he loved, namely volunteering with minor hockey. [ 75 ] I accept that Mr. Besse orally expressed that he was not providing consent to the provision of his fingerprints, and submitted that he was under duress and felt compelled to provide his fingerprints.

However, the CPS did not compel him to attend the CPS station on November 27, 2012, nor did the CPS compel him to place his hands for fingerprinting. He had a choice not to attend and not be fingerprinted. There may have been consequences for doing so, including not being able to continue as a volunteer for his son’s hockey team, but that cannot fairly be attributed to the CPS. Mr.

Besse made his own decision to attend the CPS station on November 27, 2012 because he was concerned about inferences that might be made if he did not produce the results of a criminal records check with vulnerable sector component and because he felt he could not turn his back on his commitment to act as a volunteer coach to his son’s hockey team. [ 76 ] The Court of Appeal in Weir-Jones directed that a party facing a

summary judgment or dismissal application may challenge the moving party’s case by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. Based on the evidentiary record I have reviewed, I am not satisfied that there is a genuine issue requiring a trial in the Alberta Court of Queen’s Bench. This does not mean that the Appellant cannot

continue his claim in the Federal Court of Canada against the RCMP in relation to its fingerprinting policy. However, I am of the view that the Appellant’s action seeking declaratory relief against the CPS for its actions in 2012 should not proceed. There are no triable issues that merit a full trial. I am sufficiently confident in the state of the record that I am prepared to exercise my judicial discretion to summarily resolve this dispute in favour of the CPS Defendants, consistent with the decision of Master Prowse. V. Disposition [ 77 ] The Appellant’s appeal of the Prowse Decision is dismissed and

summary dismissal of the claim against the CPS Defendants is granted. I award taxable costs to the CPS Defendants in accordance with Column 1 of

Schedule C of the Alberta Rules of Court . Heard on the 22 nd day of January, 2021. Dated at the City of Calgary, Alberta this 8 th day of February, 2021. L. Bernette Ho J.C.Q.B.A. Appearances: Melodi E. Ulku for the Appellant Douglas D. Merchant for the Respondent