CCLA calls for new law on non-conviction records

Canadian lawmakers should create a law to ban “alarming” disclosures of non-conviction information through police record checks, the Canadian Civil Liberties Association says.

A CCLA report showed there’s “a patchwork” of laws across Canada on what should and shouldn’t turn up in records checks. The situation has resulted in disclosure of dropped charges, acquittals, mental-health apprehensions, and even casual contacts by police to employers and schools that require a background check, according to the report.

“From a civil liberties perspective, it’s extremely alarming,” says CCLA general counsel Sukanya Pillay.

The report notes more and more employers are relying on criminal background checks to ensure workplace safety and avoid liabilities. But according to the CCLA, information handed over to employers often breaches privacy, human rights, and employment laws.

“This growing reliance on police record checks has significant collateral consequences that are damaging on multiple fronts,” the report says.

“On a personal level, individuals who have paid their debt to society find that they are facing years of social and economic exclusion. Those who called 911 for medical assistance or faced baseless allegations are being excluded from school, denied employment and isolated from their communities on the basis of old non-conviction records and police contact.”

Pillay is calling for overarching legislation as she says it’s unrealistic to expect the private sector to restrict the scope of its background searches or filter out the kind of information deemed inappropriate for viewing.

According to the report, there’s little evidence the growing reliance on criminal background checks will result in increased safety. “Our interviews also revealed a general perception that a police record check is a useful risk-mitigation tool — that it will help screen out ‘bad’ people and keep organizational assets and vulnerable clients safe. The available social science evidence, however, does not support this assumption,” the report states.

“The academic research that has been done to date has found that past criminal convictions are not correlated with a likelihood to commit a work-related offence in the future.”

Pillay says while safety is paramount, “we shouldn’t fool ourselves into thinking we have a meaningful screening process, which we don’t.”

Defence counsel Daniel Brown notes disclosures of non-conviction records are a concern for the criminal bar as well.

“I’ve dealt with lots of people who have been acquitted of criminal charges, who have been investigated and no criminal charges were laid. And they’ll come back to me months later or years later and say, ‘If I was found not guilty or the Crown attorney dropped the charges against me, why is this still showing up?’” he says.

“And there’s very little I can do to assist them right now because every police force has their own policies and procedures about what they’ll disclose. So there is no consistency amongst the police on what information they’ll share . . . and, more importantly, they all have their own individual appeal routes.”

If people are unhappy with what police will disclose, they often have to go through costly appeal processes that don’t necessarily result in a win for the applicant, Brown notes. “So normally they’re told, ‘Tough, but we’re going to disclose this.’”

Pillay says the CCLA was able to get the Ontario Association of Chiefs of Police to pass a motion on a presumption against the release of non-conviction records, a move she calls “a serious first step in the right direction.”

When it comes to broader legislation, the CCLA recommends taking notes from the B.C. Criminal Records Review Act.

“Governments should introduce legislation based on British Columbia’s Criminal Records Review Act, establishing centralized bodies to conduct vulnerable sector screening and evidence-based risk assessments. These bodies should provide screening services for all positions that would qualify for a vulnerable sector check,” the report suggests.

It continues: “British Columbia provides a unique, centralized process available to some employers aimed at determining whether a potential employee or volunteer poses certain risks to children or the elderly. This process, governed by B.C.’s Criminal Records Review Act, has significant benefits in terms of consistency, accuracy, human rights, privacy and fairness.”

Brown says privacy commissioners have in the past deemed the scope of criminal records checks to be intrusive and recommended a greater degree of care to protect people’s privacy. Although privacy commissioners can tell police they’re in the wrong, they can’t stop them unless there’s legislation preventing certain disclosures, he adds.

In March, the information and privacy commissioner of Ontario found police in Guelph, Ont., had inappropriately used and disclosed the records of a man regarding incidents protected under the Youth Criminal Justice Act. But the commissioner’s request for proof of correction of the records was a recommendation as opposed to an order.

Brown says the disclosure of non-conviction records “is a huge problem,” especially in the context of mental illness. It’s ironic, he says, that emergency services provided to people who were in crisis could haunt them for the rest of their lives.

In some cases, people can get pardoned convictions erased from their records even as non-conviction information remains. Even if the record indicates dropped charges or an investigation, it will have a negative impact on employment, says Brown, adding it’s a practice that goes against the presumption of innocence the criminal justice system upholds.

“When two candidates or multiple candidates are applying for the same job, what employer is willing to take a risk? Even the innuendo of a criminal investigation is enough to persuade most employers that candidate isn’t right for the job.”

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