Non-Conviction Records in Police Background Checks

1. Non-Conviction Records in Police Background Checks Graeme Norton Canadian Civil Liberties Association RightsWatch 2011

2. The Issue • Police background checks can include non-conviction records retained by police • Non-conviction records fundamentally different than convictions; can imply guilt even though it has not been proven • Can become as much a part of one’s “criminal history” as a conviction • Broader context of informational profiling – once you become a “profile” that profile can be very hard to change

3. The Process • 1.) Employer or agency requires police check as part of application process • Common purposes include: employment, volunteering, adoption, foster care, travel, educational practicum • 2.) Applicant is responsible for obtaining background check from police • Must provide “consent” to police service to disclose personal information in check • 3.) Police search national and local databases; include “relevant” information in background check • Criminal convictions if pardon not granted • Outstanding charges, warrants, peace bonds, probation • Non-conviction dispositions: Withdrawals, Stays of proceedings, Acquittals, Not Criminally Responsible • Occurrence reports and “other police contact information” • 4.) Applicant provides completed background check to employer or agency • 5.) Removal/destruction requests • Ad hoc, by request • no requirement to notify affected persons the records exist or how to seek their destruction • Determined by internal policies of police services – some consistent, some patchwork • Decision makers have significant discretion

4. Rationales for Disclosing Non-Conviction Records • Public protection - screening out potentially dangerous people • Different uses of records - Police may have valid reasons for retaining internal-use records, but different considerations apply when disclosing these records • Liability – reducing risk of liability for actions of employees, volunteers, etc.

5. Privacy Concerns • Employer/Agency confusion • Employers may not fully understand distinctions between different types of police information • Database entries only snippets of information; do not tell the full story • Non-conviction records may be misconstrued as a clear indication of criminal conduct. • Assumption of guilt • Employers and agencies may assume that non-convicted individuals are guilty, and were only not convicted because of the high standard of proof in criminal cases, the exclusion of illegally obtained evidence, etc. • Unfettered police discretion to determine what is disclosed • Policy frameworks generally provide limited guidance as to what information is to be considered “relevant” • Inconsistencies in what is disclosed • Many potentially affected • Approximately 125,000 non-conviction records created each year as a result of charges that are withdrawn, stayed, or result in an acquittal • Number of records created about police interactions that do not result in charges unknown • The Result?  Privacy invasions and denial of opportunities

6. Individual Examples • T.S. • Charged with assault in context of domestic dispute, conditional discharge • Regularly required police checks as part of nursing school practicum, career • Inconsistent disclosure of charge, depends on who is reviewing application • J.S. • Previously arrested, but never charged • Worked in police records field, but unable to determine whether record could be disclosed • J.N. • Charged with assault, family dispute, charges withdrawn • Charge disclosed in background check in spite of repeated requests to remove it, trouble finding employment • Successfully obtained court order for removal of charge from background checks • Mental health records • Detentions, incident reports can be disclosed • Some success: Ontario Chiefs of Police recently agreed to stop disclosing non-criminal mental health information • Lois Kamenitz – suing Toronto Police Service for disclosing a past suicide attempt to American border authorities

7. Limited Statutory Framework • Federal and provincial privacy legislation • No limitations placed on retention, disclosure permitted with “consent” of applicant • voluntariness of consent questionable • Criminal Records Act • Prohibits disclosure of some non-conviction records after specified time periods • Absolute discharges, one year --- Conditional discharges, 3 years • Silent on other non-conviction records (i.e. withdrawn charges, stays of proceedings) which do not involve findings of guilt • Youth Criminal Justice Act • requires the destruction of most non-conviction youth records after certain times have elapsed (acquittals, withdrawn charges, stays, discharges) • Human Rights legislation • varies across jurisdictions • Yukon expressly prohibits discrimination on the basis of charges that did not lead to convictions • BC Code has been interpreted as prohibiting discrimination on basis of non-conviction records • Ontario Code has been interpreted as silent on the issue

8. Limited Jurisprudence • Tadros v. PRPS • Childcare worker, charged with several sex offences, charges withdrawn, entered into a peace bond • Sought an Order for the removal of the withdrawn charge from police background checks • Argued that disclosure had breached provincial privacy legislation because his “consent” was neither informed nor voluntary • Ontario Court of Appeal found that Mr. Tadros’ consent was informed • Court also found that consent was voluntary • “that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair”, BUT… employers involved with vulnerable persons need access to information about prospective employees’ criminal histories • “in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.” •  J.N. v. DRPS • Charged with assault, family dispute, charges withdrawn, but disclosed in background checks • Exhausted internal avenues for destruction – sought Order for removal of record from future background checks • Successfully argued police had breached the common law duty of fairness by failing to provide a meaningful appeal process, including criteria, and reasons • Also successfully argued that S. 7 rights breached • Inability to obtain employment in chosen field, having to rely on public assistance, damage to personal reputation can cause psychological distress sufficient to breach security of the person rights • deprivation was inconsistent with the principles of fundamental justice due to the procedural fairness failings of the DRPS’ appeal process

9. Case Study: Alberta • Seven municipal police services, all of which may disclose non-conviction records • Approximately 160,000 requests for background checks each year • Disclosure is based on “relevancy”, which is acknowledged to be “highly subjective” • No specific criteria exist to resolve this subjectivity • No available data about number of checks that disclose non-conviction records or types of records most frequently disclosed • Limited data about number of expungement requests – 144 in Edmonton in 2004, maybe 300-400 per year in province??? • Onus on individual to apply for destruction • No clear process or criteria for assessment

10. Much Room for Improvement Two Options 1.) No disclosure of non-conviction records 2.) Disclosure only in highly exceptional circumstances • Regular review and segregation of non-conviction records • Only disclosable in highly exceptional circumstances, where necessary to reduce an immediate public safety threat • When a record is retained, the affected person should be immediately notified • Right of appeal in front of an independent adjudicator • Only disclosable in relation to activities that involve unsupervised access to children or vulnerable adults • Background check not required until conditional offer of employment made