CCLA at the Supreme Court: when can the police…

Teddy Weinstein
Articling Fellow
tweinstein@ccla.org

 

 

How far can police officers go when initiating a “protective” arrest? Can innocent protestors be arrested even when they’ve done nothing wrong? Can the police make an arrest to try to prevent a potential breach of the peace? These questions and more are what’s at stake in the Fleming v Ontario appeal, being heard today at the Supreme Court of Canada.

Randy Fleming was arrested on May 24, 2009 in Caledonia, Ontario by 7 Ontario Police Officers. He was alone and engaged in a peaceful political protest, when he was forced off of a public road and onto private property. His arrest was ostensibly made on the basis of a common law police power that does not appear in the Criminal Code or any other statute; to arrest a person in order to prevent an “apprehended breach of the peace.” A breach of the peace can be harm or threat of harm to a person or property. “Apprehended breach” simply means that the police officer only needs to be reasonably sure there that a breach of the peace may occur.

In this case, the police were concerned that Indigenous protesters occupying the land that Mr. Fleming walked onto might resort to violence. During this “protective” arrest, Fleming was permanently injured by the officers.

The “ancillary powers” doctrine, according to the Ontario Court of Appeal, made Mr. Fleming’s arrest legal, even though he was not currently committing or even suspected of committing a crime. Ancillary powers are new police powers that can be created by judges at common law, based on an old British case. While using ancillary powers can be justified (for example, the police investigating apparent domestic violence after a 911 call for assistance is abruptly disconnected) the use of the power should be subject to rigorous Charter analysis. Especially in cases like Mr. Fleming’s, where the power is used to suppress lawful free speech.

CCLA is troubled by granting ill-defined, common law police powers that allow the police to deprive people of their fundamental Charter rights to liberty, security of the person, and freedom from arbitrary detention. We are intervening to make sure that they are appropriately limited.

Ancillary common law powers of the police have been used to justify more than just preventative arrests. Warrantless searches, spontaneous road blocks and detention of pedestrians for the purpose of investigation, all fall within the ancillary powers doctrine. The power to arrest for apprehended breach of the peace requires special attention, as it is used against persons who have neither committed an offence nor threatened to do so. It is also resistant to review since, unlike an arrest where charges are laid, the circumstances that give rise to the detention almost never come before a court.

Mr. Fleming’s case is exceptional, then, as it provides a rare opportunity for the highest court in Canada to rule definitively on the limits of the power to arrest for apprehended breach of the peace. The immense societal cost to our freedom of expression that stems from this ill-defined, uncodified police power may finally be appropriately curtailed if the Court requires a rigorous Charter analysis.

CCLA has taken the position that the exercise of ancillary powers by police should be subject to a Charter analysis as proposed by Supreme Court Justices Binnie, LeBel and Fish in their concurring reasons in Clayton, decided in 2007. Without a more robust test in place, the ancillary powers have been used to justify a number of incidents of police misconduct, including during the G20.

CCLA will also ask the court to clarify that when an arrest for apprehended breach of the peace is made, the arrestee should be released immediately, as soon as the risk of the breach of the peace has passed. Prolonged detention simply cannot be justified in these circumstances.

CCLA’s intervention in Fleming is part of our ongoing work to fight for your rights to be free from overbearing police powers, and to protect the rights to free expression and peaceful assembly. We thank our counsel Sean Dewart, Adrienne Lei and Mathieu Belanger for representing us pro bono, and look forward to seeing how the Court addresses the important issues this case raises.

Blowing the Whistle on Saskatoon’s Proposed Rules for Rideshares…

Abby Deshman
Director of Criminal Justice Program 
adeshman@ccla.org

 

 

 

 

This morning we wrote to Saskatoon’s Mayor and City Council to share our concerns about the legality, and the wisdom, of their proposed new rules for rideshares.

A city stepping in to regulate rideshares is often a fraught exercise. But what caught our eye wasn’t the typical debates – but the City’s insistence that all potential drivers undergo the most intrusive level of police record check and their blanket exclusion of people with certain criminal records from employment.

The vulnerable sector check is a level of background check that should, by law, be reserved for those applying to the most sensitive positions of trust with, or power over, vulnerable individuals. Typical examples include summer camp counsellors or personal support workers for the elderly or disabled. Of course, taxi and rideshare drivers will come into contact with all sorts of people in the course of their day, vulnerable and not. But general contact with the public in all its diversity shouldn’t be enough to unlock what is supposed to be a narrow, exceptional form of record check.

The proposed absolute prohibition on people with certain criminal convictions from obtaining a licence is also troubling. Although the scope of this prohibition isn’t clear from the draft regulation (something of a problem in itself given that Council is being asked to vote on it on Monday), it turns out this isn’t a wholly new idea in Saskatoon – the city already has an absolute ban in place on some people with criminal records receiving taxi licences.

Presumably, the existing bylaw and this new proposal stem from a desire to keep transportation customers safe. Blanket policies excluding individuals with criminal records from employment, however, are more likely to undermine community safety than enhance it.

Research has shown that performing criminal records checks is not a reliable way to identify individuals that are at higher risk to commit workplace crimes. There is no way to predict, based on an individual’s criminal record, whether a person is more likely to commit a future crime in a workplace context.

The consequences of excluding individuals exiting the criminal justice system from stable employment, on the other hand, is clear. Stable employment, as well as the income, stable housing and social networks that employment can foster, are significant protective factors against future reoffending. Systematically excluding individuals with criminal records from employment decreases community safety by creating barriers to rehabilitation and reintegration. Governments should be promoting policies that encourage businesses to hire individuals that might otherwise be marginalized from stable employment, not passing bylaws that entrench stigma and legally mandate unjustifiable discrimination.

We hope City Council will take a hard look at its current and proposed bylaws on Monday, and send these proposals back to the drafting board.

Read our full letter here.

WHAMMY! Supreme Court of Canada Strikes Down Canada’s Ugliest…

Abby Deshman
Director of Criminal Justice Program 
adeshman@ccla.org

 

 

 

 

Michael Bryant
Executive Director and General Counsel
mbryant@ccla.org

 

 

 

 

Whammy!  It’s not everyday that civil libertarians hit a home run in the Supreme Court of Canada.  But thanks to some painstakingly strategic litigation and jurisprudence; thanks to great advocacy (by CCLA and many others, but thank you to our counsel Chris Bredt and his great team at Borden Ladner Gervais LLP);  thanks to the seven justices of the Supreme Court of Canada, Canada’s ugliest populist criminal sanction is gone.

Ugly because mandatory victim surcharge fines were intentionally punitive.  When the Harper Government figured out that judges were making exceptions under the old victim surcharge law, such that courts would refuse to tack on a fine to someone who had no chance of paying that fine, those Honourable swines chose to make the fine mandatory, turning our criminal courts into factories for debtors prison.  

Many of us watched trial judges break the news, often with great anguish, that they had no choice but to fine the person in front of them, more often than not someone penniless and mentally ill, an amount everyone in the court knew could not be paid.  It was cowardly of the Harper Government to do it, because they left the dirty work to the judges. It was shameful of the Trudeau Government to leave that law untouched until finally, mercifully, the Supreme Court of Canada smacked some sense into the criminal law by striking down the ugly provision, effective today.  

No one should be punished for being poor. Yet for the past five years, Canadian courts have been required to impose additional mandatory fines on all individuals found guilty of a criminal offence – regardless of the seriousness of the person’s actions, the surrounding circumstances, or whether an individual would ever be able to pay back the money. Failure to pay the fine could result in imprisonment.

The results were just what the populist doctor ordered:  sweet press conferences by police showing off their ‘victim crime surcharge’ fund paying for police pet projects.  To exploit victims of crime like this was so wrong. For years the lower courts have been pushing back. Some extraordinary jurisprudence arose from provincial courts, from Ontario and BC in particular, to thread the needle that constitutionally ‘inferior’ courts ordinarily cannot achieve without superior court approval.  

As if any of this was tough on crime.  It wasn’t tough at all. It was the worst of human nature, cruel and unusual punishment.  Literally.

Take the case of Shaun Michael. Shaun was a 26 year old Inuit man, addicted to drugs and alcohol, unemployed and bouncing between the street, a shelter and his aunt’s apartment. All his offences stemmed from addiction, not to mention a childhood of abuse. Over the course of several months he repeatedly became intoxicated and acted out. He stole a bottle of alcohol; jumped out into traffic; broke a shelter window. He lashed out at the security guard and police officers who came to arrest him. He drank and failed to be ‘of good behaviour’ contrary to the terms of his probation order. When he found out his father, who he hadn’t seen in many years, was in Ottawa – also living in shelters – he followed him there and forgot to notify his probation officer — another crime. Over the course of six months, from January to June 2014, he pled guilty to nine criminal offences. The law would have required the judge to impose, on top of his sentence, a fine of $900 – $100 for each summary conviction. At the time his case was decided, he owned nothing and lived on a $250 a month “street allowance”. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.

Or the case of Daniel Larocque. In 2017 he was 22 years old, impecunious, and suffering from drug addiction and mental illness. He lived on disability benefits, and after paying for food and housing he had $136 per month for all other expenses. He was subject to a $700 mandatory fine after pleading guilty to seven summary conviction offences – possessing morphine, assaults, uttering threats, mischief. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.

Or Edward Tinker. He was 55 years old when he was sentenced after pleading guilty to uttering threats and breaching his probation. He was unable to work after a workplace injury, and suffering from heart disease and cancer. He had no savings. He was living off CPP and Worker’s Compensation – $1,200 a month, which after paying $950 in rent and $80 in medication left him with about $170 a month for all other expenses. The sentencing judge ruled that the additional mandatory fines were unconstitutional.

Or Kelly Judge. A 53 year old woman, legally blind and a recovering alcoholic suffering from depression and bipolar disorder. She pled guilty to assault and uttering threats. At the time of sentencing, she had $2000 in her savings account. She lived off of $831 in CPP disability benefits; after paying $800 per month in rent she had $31 per month and her savings to cover all other expenses.

All these people faced mandatory fines – regardless of the seriousness of their actions, their life circumstances, or whether they had the means to pay them. And if they didn’t pay the fines, they faced the threat of jail time – and being brought to court to show that they were still unable to pay the fines, and therefore should not be incarcerated. With fines outstanding none of them would be able to get a pardon or record suspension, and would be saddled with a criminal record for life.

All of them were facing additional, indefinite punishment – just because they were poor, unwell, in pain.  The response of Parliament was to force judges to kick ‘em when they’re down, for good measure. Canada’s executive current caretaker of the constitution, Jody Wilson-Raybould, sent forth her agents to the SCC defend that law.  Thus is the state of populism today that a majority Liberal Government is too afraid to stand up to it in the legislature or even in our courts.

We’d venture that if Cabinet Ministers had to leave the back seat of their limo to live on the street for days at a time they would crumble in short order. That the aforementioned defendants remained alive is a story of great tragedy and perseverance.  But they did make it to their sentencing hearing, at which point the trial judges finally said enough is enough.  (That the provincial Courts of Appeal are so disconnected from the criminal legal system that they could overturn those sentencing rulings is a matter for another day).  

So now the Supreme Court of Canada has confirmed it:  enough is enough. Good riddance to the ugliest law in the land.  While it may not have been as harmful as, say, our solitary confinement laws (currently being shredded by CCLA and BCCLA), it’s hard to think of a federal law so mean spirited as that sodding law.  The provincial panhandling ordinances still operating with a vengeance across Canada do maintain the crown for the Charles Dickens Barbarity Prize.

Many thanks to our counsel in the case – Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of Borden Ladner Gervais LLP.

 

Read the full decision here.

For a webcast of the hearings, click here.

For CCLA’s intervenor factum in the case, click here.

New Act Protects Ontarians from Release of Unproven Allegations

Abby Deshman
Director of Criminal Justice Program 
adeshman@ccla.org

 

 

 

 

Across the country, Canadians who have never been found guilty of a crime are unable to get jobs, access higher education, or volunteer because of their police records. Some of them experienced a mental health crisis and received assistance from the police. Others have had their names noted in the course of a police investigation without ever being interviewed or charged. Still, others have been charged, but through the legal process have been found not guilty or had all the charges withdrawn. Years later, however, notations were still showing up on their police record checks, creating enormous, and in many cases insurmountable, barriers to housing, work, volunteering and education.

As of November 1st, provincial legislation in Ontario addresses this issue, making the province a little bit fairer – and safer as well.

Ontario’s Police Record Check Reform Act came into effect last month, standardizing most police record checks in Ontario, including by regulating the type of information that police services release on these checks. The result of years of collaboration between policing leadership, the non-profit sector, and civil liberties, justice, and mental health organizations, it has broad support, including a unanimous vote of approval from all parties upon third reading in the Ontario legislature.

The Ontario legislation means that people who are ‘carded’ by the police, dealt with under the Mental Health Act, or questioned in connection with an allegation but never charged with a crime will not have these interactions disclosed on an Ontario police record check. And it will put in place a presumption that those who have been charged with a crime but never found guilty, will only have this information disclosed in exceptional circumstances.

The legislation isn’t perfect. There are too many illogical exemptions, and some legal oddities, like the treatment of those found not criminally responsible. But it is a definite improvement on the status quo, makes Ontario a national leader on this issue, and will make the province a fairer place to live for thousands of residents. Other jurisdictions should take note and follow suit.

So the fairness part is pretty clear. But how does this legislation also make us safer?

First, let’s disabuse ourselves of the notion that police record checks are a useful tool to help predict a person’s future behaviour. We searched high and low for evidence of a link between non-conviction records and the likelihood that a person will commit a crime in the future. There is none. Even when a person has been both charged and found guilty of a crime, the studies show no link between their criminal record and job performance.

The evidence does suggest that, for a few years after a person has been found guilty of a crime, there is an elevated likelihood that he or she will have further contact with the criminal justice system. But there is no link between the type of offence committed in the past and the nature of the possible future contact. A prior conviction for assault might be followed by a curfew violation, a theft, or a violent crime. It’s just not something you can predict based on a person’s record. This is also true for those who have been convicted of sexual offences. A record alone does not predict future behaviour. Life is not that straightforward.

Giving a person with prior involvement in the criminal justice system stable employment is one of the most important things you can do to reduce recidivism. Unjustifiably excluding people from steady employment, housing, higher education, or meaningful community work makes for less equal and less safe communities.

Preventing the disclosure of non-conviction records simply means that employers, volunteer agencies and others will not be able to rely on irrelevant information to persuade themselves that their vulnerable clients are ‘safer’ because they have weeded out the ‘bad’ people.

There are lots of things that organizations can and should do to keep people safe. Train employees and volunteers properly. Put in place proper, ongoing supervision. Have regular, independent ‘check-ins’ with clients. Audit files. Have clear and effective whistleblower and complaint policies.

And yes, when hiring someone for a position of particular trust or authority, it can be reasonable to make an offer conditional on providing a criminal record check. But know that the information you get on that piece of paper will not tell you much about whether that person is trustworthy or not.

And don’t worry that, in Ontario at least, the record check won’t tell you about that time the person was taken to the hospital, or those old charges that never went anywhere – that information was never that useful in the first place.

 

What you need to know about the new Police…

WHAT YOU NEED TO KNOW ABOUT THE NEW POLICE RECORD CHECKS REFORM ACT

On November 1, 2018, the Police Records Checks Reform Act (PRCRA) comes into force. Police record checks are searches of police databases that are conducted in order to screen a person to help determine their suitability for things like employment, volunteer position, a licence, etc.

The new Act will standardize most police record checks in Ontario, including regulating the type of information that police services release on these checks. For information on when a record check might be exempt from various PRCRA requirements see the section on “Exemptions” below.

What levels of record checks are there?

Under the PRCRA there are three levels of record checks:

  1. A criminal record check
  2. A criminal record and judicial matters check
  3. A vulnerable sector check

Who can request a record check?

An individual must give their consent before the police can run a record check.

The most privacy-invasive type of check – a vulnerable sector check – can only be run if:

  • the request is made by a person or organization responsible for the well-being of a child or vulnerable person;
  • the request is made in the context of a specific application for a paid or volunteer position;
  • the position being applied for is one of trust or authority towards a child or vulnerable person; and
  • the applicant has given their consent in writing.

A vulnerable person is a person who, because of their age, a disability or other circumstances, is in a position of dependency on others or is at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them. Not every position that involves contact with a vulnerable person will meet the requirements for a vulnerable sector search. The position must be one that creates either authority (power) over, or special trust with, a vulnerable person.

What information can be released on a record check?

At each level of record check more information can be released.

Under a criminal record check, the police can release:

  • Criminal convictions that are not subject to a pardon or record suspension. Summary convictions, even if they are not sealed by a pardon or record suspension, can only be disclosed for five years.
  • Findings of guilt under the Youth Criminal Justice Act where permitted by that Act (although note that these cannot be passed on to most employers – see section on Youth Records below)

Under a criminal record and judicial matters check, the police can release:

  • Everything in the previous level of check:
  • Criminal convictions that are not subject to a pardon or record suspension. Summary convictions, even if they are not sealed by a pardon or record suspension, can only be disclosed for five years.
  • Findings of guilt under the Youth Criminal Justice Act where permitted by that Act (although note that these cannot be passed on to most employers – see section on Youth Records below.

And this information:

  • Criminal offences where the person has been found guilty and received an absolute discharge within the past year
  • Criminal offences where the person has been found guilty and received a conditional discharge within the past three years
  • Criminal offences where there is an outstanding criminal charge or arrest warrant
  • Some types of outstanding court orders

Under a vulnerable sector check, the police can release:

  • Everything in the previous level of check:
  • Criminal convictions that are not subject to a pardon or record suspension. Summary convictions, even if they are not sealed by a pardon or record suspension, can only be disclosed for five years.
  • Findings of guilt under the Youth Criminal Justice Act where permitted by that Act (although note that these cannot be passed on to most employers – see section on Youth Records below)
  • Criminal offences where the person has been found guilty and received an absolute discharge within the past year
  • Criminal offences where the person has been found guilty and received a conditional discharge within the past three years
  • Criminal offences where there is an outstanding criminal charge or arrest warrant
  • Some types of outstanding court orders

And this information:

  • Criminal convictions where a pardon or record suspension has been granted, if authorized under the federal Criminal Records Act
  • Criminal offences where a person has been found not criminally responsible on account of mental disorder, except if over five years has passed since a person received an absolute discharge
  • Non-conviction information where a person was charged with a criminal offence, but never found guilty because the charge was dismissed, withdrawn or stayed. In order to disclose this information the charge must meet the “exceptional disclosure test”, which requires that:
  1. The criminal charge be on a list of offences (set out in Regulation);
  2. The alleged victim was a child or vulnerable person; and
  3. The information provides reasonable grounds to believe that the individual has been engaged in a pattern of predation indicative of a risk of harm to a child or vulnerable person.

No police record check can ever disclose police contact where there hasn’t been a criminal charge laid. This includes police apprehensions under the Mental Health Act, instances where a person was investigated but never charged, and police interactions where information was recorded but no charges were laid. Police record checks also will not reveal findings of guilt under provincial acts (eg. Liquor Licence Act offences, Highway Traffic Act offences, etc.).

Who receives the results of a record check?

In most cases the results of a record check must be returned to the person applying for the check, who can then decide whether or not they want to share the information with anyone else.

For the first two levels of check (criminal records check, criminal records and judicial matters check), the regulations allow for a self-declaration process where the results can be sent to you or, if you consent, directly to a specific employer or organization.

Under this self-declaration process, a person is asked to declare his or her Canadian criminal conviction history to the records check provider.

For a criminal records check, if the self-disclosure matches what is in the police database will be disclosed. In situations where there are no criminal convictions this will be a confirmation that there is a match with no criminal convictions. If the person does have a record of criminal convictions, the record check provider will disclose the fact that there is a match along with the self-declaration form.

A criminal records and judicial matters check can include not only criminal convictions but also a range of ‘judicial matters’ (for details see the section on What information can be released on a record check?). Self-disclosure works the same way for the criminal convictions portion of this check. If there are no ‘judicial matters’ to disclose, the records check provider will also be able to state that there is a clear result for judicial matters. If, however, the police databases reveal any ‘judicial matters’ that could be disclosed on this level of check, the record check provider will only state that there is not a clear result for judicial matters.

What about youth records?

Youth who are under 18 when they (allegedly) committed a criminal offence are dealt with under the Youth Criminal Justice Act (YCJA). Unless a young person is found guilty and sentenced as an adult, the YCJA governs the disclosure of youth records.

Under the YCJA, although a youth can request their own record for a certain period of time, the only time a youth record can be included on a police record check is when that check is being conducted for employment with or provision of services to a government (municipal, provincial, or federal). Even government employers cannot see youth records once the “access period” is closed. The length of the access period depends on many different factors.

In order to ensure that youths’ rights are protected, the PRCRA requires that any youth record that is disclosed be printed on a separate page. The page will also include a statement directing the youth to remove the page before sharing the police record check with anyone else, including a potential employer or volunteer organization.

Exemptions

Some types of record checks are exempt from the requirements of the PRCRA. This doesn’t mean that police services will necessarily release more information on these searches – it just means that this particular law does not govern the disclosure of records in some situations. There will still be other laws that govern these record checks, and police services may still decide to follow the ‘normal’ three levels of record checks as a matter of policy.

The list of searches and record check products exempted from the Act include:

  • A police record search under the Children’s Law Reform Act regarding an application for child custody by a person who is not the child’s parent
  • A search for the Office of the Children’s Lawyer when it is representing a child or reporting to a court
  • A check required under the Change of Name Act
  • A search requested by a sheriff under the Juries Act
  • Searches related to the administration of the Firearms Act
  • A search required for the purpose of carrying out the Attorney General’s functions under the Ministry of the Attorney General Act
  • A search required to fulfill duties assigned to Crown Attorneys and provincial prosecutors under the Crown Attorneys Act
  • Some searches requested by children’s aid societies
  • Some searches related to adoption, residential and foster care
  • Screening certain individuals working in or providing goods or services in the Child and Parent Resource Institute
  • Screening of employees, volunteers or students in some electricity generation facilities
  • Some searches requested by or on behalf of the Ontario Securities Commission
  • Screening of certain individuals in connection with police services, probation and parole offices, correctional institutions, inspectors or investigators charged with investigating offences or enforcing the law, the Special Investigations Unit, the Independent Police Review Director, a local corrections monitoring board, and the Provincial Security Advisor for Ontario
  • Screening certain individuals involved in the “administration of justice sector”, adjudicative tribunals, the Office of Public Guardian and Trustee, the Children’s Lawyer, the Office for Victims of Crime,
  • Some searches requested by the Criminal Injuries Compensation Board
  • Some searches performed in connection with licencing and regulation in financial services

Some records checks conducted in connection with a school or the Child Care and Early Years Act do not have to follow the rules about what information can be released at each level of check.

For all the details of exemptions from the Act you can look at the Regulations.

What if I disagree with what is being released on my record check?

If you think the information that the police have on file is not accurate, you can make a complaint to the Information and Privacy Commissioner.

If the police have decided to disclose non-conviction information under the “exceptional disclosure exemption”, the police must also include information on how you can apply to have the disclosure reconsidered. You need to provide a request for reconsideration in writing no later than 45 days after receiving your record.

If you think that the police are releasing information in contravention of the PRCRA, you should speak to a lawyer and get in touch with the CCLA!