Discretion, Reason, and Justice with PRCs
Protecting the youth with responsible use of Police Record Checks
By Scouter Ted Claxton, May 6, 2005
As leaders in a youth organization, we have a big responsibility. We have to ensure that the young people in our care are safe. As we accomplish this, we are expected to take such reasonable care as a prudent parent would take. A prudent parent acting reasonably would not want someone with a significant criminal background having direction or control over his or her child. Several years ago, Scouts Canada introduced a policy that required each adult member to provide a Police Record Check. This was a progressive measure that helped us in the screening process developed to help us protect the youth in our care.
When this policy was first introduced, District Commissioners were responsible for reviewing members' PRCs. If there were any items reported on the PRC, the District Commissioner had the discretion to review the matter with the person to find out what it was about. For example, if a person had a shoplifting conviction that was more than five years old, the Commissioner was likely to consider the matter not sufficiently serious to prevent a person from being a member of Scouts Canada. Indeed, a person who has had such an experience is likely to have a serious perspective on it and can probably relate to Scouts his or her real problems associated with having a run in with the law.
Recently, Scouts Canada changed the policy and took away this discretion. The policy now is that if an applicant or member does not have a "clean PRC", that person cannot be registered as a member of Scouts Canada. This is a form of zero-tolerance policy.
Let's see how this policy works in the real world with two examples. First, a Scouter with 30 years service whom I have personally known for over 10 years. Some years ago, the Scouter had been offered a ride home and accepted that ride. It turned out that the person offering the ride was driving a stolen car. The vehicle was stopped by the police and both occupants arrested. When the police discovered the facts, the Scouter was released without being charged.
When the PRC policy was first put in place, this Scouter's PRC showed that he had been arrested for theft some 25 years prior. The District Commissioner looked into the matter and quite properly concluded that this was not a matter that should be taken into account.
Things changed when Scouts Canada's policy went zero-tolerance. When the Scouter needed to provide a PRC, as is required periodically, Scouts Canada's regional Executive Director saw that the PRC was not blank. The ED, bound by the policy dictates, immediately sent a letter to the Scouter informing him that he was to cease and desist all Scouting activities. He was told that if he got a pardon, he could be reinstated.
The Scouter attempted to get a pardon. He was told that since he was never convicted of any offence, he did not need a pardon and a pardon could not be granted. This person is a dedicated Scouter so he set out to rectify the issue. Initially, he was totally frustrated in his efforts to have Scouts Canada allow him to rejoin. Ultimately, he hired a lawyer. Through the year-long efforts of that lawyer, Scouts Canada finally relented.
This case demonstrates that Scouts Canada seems unable to understand the meaning of what is written on PRCs. The mere fact that an entry appears on a Police Record is not relevant. It is necessary to understand what such entry means. A PRC which shows an arrest with no charge indicates that the police had some reasonable suspicion that the person might have committed an offence, but then quickly concluded that that was not the case.
As a result of Scouts Canada's failure to apply reason, understand the facts, and exercise discretion, the Scouter was put through an unreasonable and unjust process, and the members of their section did not benefit from his leadership for a considerable period of time. Most people would have given up and Scouts Canada would have missed out completely.
The second example is equally egregious but for a different reason. In 1990, this Scouter participated in a demonstration in front of the American consulate in Toronto following the shooting down of an Iranian Airliner by the United States. Along with others, he lay down on University Avenue, blocking traffic, symbolic of the dead civilians of that airliner. The demonstrators were exercising the type of civil disobedience that is part of a the exercise of freedom in a free and democratic society. This Scouter was prepared to accept the legal consequences of this act. The police hauled them all away charged them with public mischief. He was convicted and fined $100.
His PRC, of course, shows this conviction. He was told by Scouts Canada that he is not welcome as a Scouter. Knowing the nature of the offence, any reasonable person would conclude that this should not be an impediment to being a Scouter. Indeed, I would suggest that a person who has this courage of conviction would make an ideal Scouter.
The school system also got caught up with this zero-tolerance mania. There was a news report that a child was suspended from school for having a plastic picnic knife in his lunch box. The problem with zero-tolerance policies is that they remove proportionality. No one is permitted to use judgement, discretion, or reason. Everyone is fettered and bound by an inflexible rule that often results in injustice. Our current Scouts Canada policy is both harsh and absurd. It is harsh because it substitutes consideration of the reality of a person's situation with an unthinking knee jerk bureaucratic absolutism. It is absurd because it leads to results that will ultimately expose Scouts Canada to public ridicule.
What is needed to keep kids safe is vigilance. The indiscriminate reliance on PRCs may lead to complacency. Here is what happened in a real case in which Scouts Canada was sued and found liable (C.S. vs. Miller 2002 ABQB @ p.152). The events took place in 1993, prior to the PRC requirements. A leader, by himself, brought a young boy to a local Scout camp. Members observed inappropriate behaviour toward that child but did not intervene. The child made a complaint of improper sexual conduct to an adult member but that adult did not take any action to help the child. The leader was permitted to leave the camp with that child.
In its judgement, the court stated that neither the volunteers nor Scouts Canada could be held liable in circumstances where they were unaware of inappropriate or criminal activity or, upon becoming aware, took reasonable measures to protect the child. The judge found that the members had failed to protect the child in circumstances where it was reasonable to intervene.
A zero-tolerance policy would have done nothing to protect this child. Instead, it creates a false sense of security while unjustly excluding people whose membership would be beneficial to Scouting.
This is not to say that Police Record Checks should not be used. They are an essential part of a good screening process, but a screening process is just that: An opportunity to examine the candidate. The PRC is one piece of information that helps us to learn about a prospective Scouter. The diligence must continue after a person's membership has been accepted, and this depends on training.
Volunteers need training that will prepare them to take action in the face of wrongdoing. Volunteers do not have to go around being suspicious of everyone, but must act reasonably and responsibly. Sometimes members feel that they cannot interfere with other leaders, or they feel a reticence about confronting someone. Volunteers need to know about real situations so that they have the knowledge about what to do, a strategy for taking charge of a situation, and the willingness to do the right thing to protect a child.
As leaders engaged in the non-formal education of young people, we want them to learn sound judgement, the ability to use reason, and to treat people fairly as individuals. We should be leading by example when considering an applicant for adult membership. A screening policy permitting reasonable discretion, combined with better training about the risks, will make Scouts Canada members safer, increase the number of volunteers, and avoid the unjust treatment of volunteers and prospective volunteers.