Ontario moves to limit police sharing non-conviction information

A proposed new law would prevent the inappropriate release of non-conviction or non-criminal mental health information.

Thestar.com
June 3, 2015
By Richard J. Brennan and Robert Benzie

Police will no longer be able to share information from background checks without first showing it to the person involved under new Ontario legislation triggered by a Star series.

The proposed bill to curb the inappropriate and often damaging release of non-conviction or mental health information during police background checks was introduced in the legislature Wednesday.

The Police Records Checks Reform Act follows a Star probe last year revealing widespread harm caused to Ontario residents by the routine release of old police information, which Premier Kathleen Wynne said concerned her greatly.

“The main thrust of the legislation is to strictly limit the disclosure of non-conviction information and prohibit the disclosure of non-criminal information such as mental health information,” Community Safety Minister Yasir Naqvi told reporters, adding the new guidelines would apply to all police services across the province.

He added the kind of non-criminal information often collected from the practice of carding by Toronto police would not be disclosed in a police record check.

Naqvi said the stories are legion “of the often lasting negative impacts many Ontarians have endured because of the disclosure of mental health and non-conviction information in police records checks.”

“We heard from hard-working Ontarians who lost their job or were unable to find employment because of past incidents involving mental health contact with police. We heard about folks being stopped from volunteering in their community because they witnessed a crime or were questioned by police,” he said.

The Police Records Check Reform Act was met with widespread support, including the Canadian Mental Health Association, the Ontario Association of Chiefs of Police and the Canadian Civil Liberties Association.

The proposed legislation would set the province's first clear, consistent and comprehensive set of standards for how police record checks are requested, conducted, and disclosed by:

Ensuring that all police services in Ontario consistently offer three types of police record checks - criminal record checks, criminal record and judicial matters checks and vulnerable sector checks.

Limiting and standardizing the types of information that can be released for each type of police record check.

Ensuring that the person to whom a record relates has an opportunity to review the results prior to permitting its release to a requesting third party.

Providing individuals with a process to request that certain types of non-conviction records, such as dismissed charges, be reconsidered and not disclosed.

However, NDP deputy leader Jagmeet Singh said while changes are desperately needed, the legislation still puts too much power in the hands of police, who will still have limited authority to decide what gets released and what doesn’t.

For example, ministry staff said that under a vulnerable sector check, information could still be released about a person who has shown a pattern of behaviour that could pose a threat.

John Struthers, a veteran Toronto criminal lawyer and provincial director of the Criminal Lawyers’ Association, called the proposed legislation “good first step to reaffirming our belief as Canadians in the presumption of innocence.”

“Too many lives have been ruined by a system we all hope will be more fair and balanced. In the internet age mere allegations have even more haunting consequences. We need to safeguard our freedoms with vigilance,” Struthers said.

The proposed legislation does not restrict information sharing in police circles. That means a person, who has attempted suicide, can still be stopped at the border and turned back, Naqvi acknowledged.

During the June 2014 provincial election, the Grits, Progressive Conservatives, and New Democrats agreed new measures were needed to protect innocent Ontarians from police checks containing unproven allegations and mental health incidents.

Laura Berger, public safety program director with Canadian Civil Liberties Association called the government’s move “a great step forward” that will have a “tremendous impact on individuals across the province.”

The CCLA estimates as many as four million Ontarians have some form of non-conviction record.

“I get regular calls from people who have been prejudiced by the release of non-conviction records. A fair chunk of those people will be positively impacted by this.”

Police across Ontario and Canada currently use a patchwork of policies for the release of these records. That means little consistency from jurisdiction to jurisdiction.

While many forces in Ontario agreed to stop releasing non-conviction records in according with new guidelines issued last summer by the Ontario Association of Chiefs of Police, others, including Toronto Police Service, chose not to adopt the non-mandatory recommendations.

“If the legislation passes, police services like Toronto will no longer have the flexibility to set their own policies,” said Berger. “They will be required to follow the standards and legislative structure set down by the government. We think that will be very helpful.”

Cathy Taylor, executive director, the Ontario Nonprofit Network, said Ontario’s non-profit sector’s 55,000 organizations, 5.2 million volunteers and one million paid staff, this means fewer barriers to employment and volunteerism.

“Organizations and employers need to understand the content of what they will see in a police record check and this legislation provides the clarity they need,” said Taylor.

The Star’s Presumed Guilty series found that millions of innocent Canadians with no criminal records are having their professional and personal lives affected by data that lingers on police computers.

Such information is routinely disclosed by police to employers, volunteer organizations, academic institutions and even U.S. government officials.

People had careers end, their job prospects undermined, or their studies disrupted by the disclosure of the so-called “non-conviction records.”

Some information in Canada’s criminal records database has been used by American border officials to restrict the travel of Canadians stateside.

The Star found that mental health phone calls to 911 emergency services have popped up in police checks of people crossing the border or seeking jobs at hospitals and daycares.

Currently, police departments have a free hand at releasing non-conviction information from their databases.

Among those affected by the data sharing has been Rick Perreault, a Sudbury man who was stopped by police while driving for reaching back to quiet his overactive son with a tap in the leg. The “record,” which never led to a charge or conviction, now prevents the man from volunteering with the Children’s Aid Society or coaching his son in sports.

Most people do not know they have non-conviction records until they apply for the mandatory police check required for work with vulnerable persons, to coach a hockey team or even, apparently, walk dogs.

Still others learn of their “records” from U.S. border officials as they try to travel south.

The number of potentially vulnerable Canadians is increasing as demands for police checks become routine.

In Toronto, for example, there were 110,000 such checks last year - a 92 per cent increase in five years.

The rise for police records began in 2001 when the Ontario government decreed all teachers and other school employees must undergo such checks.