On Tuesday May 15 the CCLA will appear before the Ontario Court of Appeal in J.N. v. Durham Regional Police Service, a case that will examine the procedural protections and constitutional rights owed to individuals with non-conviction records that are retained and disclosed by local police forces. Read the CCLA’s factum.
Police run hundreds of thousands – perhaps millions – of record checks every year. Most of these checks are used to inform employment and volunteer hiring decisions. They are also frequently performed in connection with adoptions, foster care applications and travel. Contrary to popular belief, however, the information that is revealed in these background checks is not limited to criminal convictions. A wide range of “non-conviction” records can be disclosed, including information about criminal charges that were withdrawn, cases an individual was found not guilty, or even complaints where charges were never laid. Even non-criminal interactions, such as experiences with police due to mental health needs, are recorded in police databases and may show up on background checks.
Across Canada individuals who have never been found guilty of any offence are prejudiced by these non-conviction records. Disclosing this type of sensitive information may undermine the presumption of innocence. Employers who receive ‘negative’ records checks may not fully understand the distinctions between different types of police information, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. In the case of mental health records, this information may lead to illegal discrimination against those with mental disabilities.
In the case before the Ontario Court of Appeal, J.N. is challenging the Durham Regional Police Service’s refusal to remove a withdrawn charge from her background check. J.N. is a woman in her 50s who, in 2006, was involved with in a family dispute involving her ill, 91-year-old father. A complaint was made and eventually J.N. was charged with assault. The charge was withdrawn before trial. A few years later J.N. applied for a media relations position in a school board. In order to be hired she was required to provide a Vulnerable Sector Background Check from her local police station. Although she had never been found guilty of any crime, the police report came back showing the 2006 assault charge. J.N. requested the charge be removed, but her request was denied without explanation. The lower court found that J.N.’s procedural rights had been violated. The Durham Regional Police Service has appealed that ruling.
To read the lower court’s decision click here.
To read CCLA’s factum before the Court of Appeal click here.