Ontario leads the way on police record checks reform

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 license, etc. The PRCRA will standardize most police record checks in Ontario, including regulating the type of information that police services release on these checks.

This is a victory, and a milestone in our long fight to put in place meaningful protections for people with non-conviction police records. It is a law that will make Ontario a fairer – and safer – place to live.

We’re thrilled to see Ontario leading the way. We also know that our work isn’t done.

The PRCRA isn’t perfect. There are far too many exemptions, most of which simply don’t make sense and risk recreating the inconsistent policy patchwork that led us to the need for this law in the first place. Many of the exemptions are in regulation and expire automatically in a year – most should not be renewed.

This law also only applies to records checks done in Ontario – it’s time for the other provinces and territories to follow Ontario’s lead and step up.

And finally, we need to change a few other laws, and in general rethink why we are using criminal record checks in the first place. Excluding people unjustifiably from workplaces and volunteer placements is unfair and makes our society less safe. Knowing whether or not a person has a criminal record doesn’t tell you much, and there are other, more effective ways to keep clients and businesses safe. 

What will the new law do?

The new Act will standardize most police record checks in Ontario, including regulating the type of information that police services release on these checks. Importantly, it will mean that people who are simply stopped 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. Disclosing this type of information on police record checks was leading to unfair discrimination, particularly in education and workplaces, and the CCLA worked hard over many years with our partners in the policing, justice, non-profit and mental health sectors to put in place these legal protections.

There are some tricky details and exemptions in the law, so for the full details please read the law itself or our PRCRA Fact Sheet.

You can also hear about some of the individuals who were impacted by the release of non-conviction records and shared their stories in an effort to bring about change – in our audio stories.

Employers and volunteer agencies should also check out our summary of the social science evidence on the usefulness of police record checks, and non-conviction records in particular. A quick summary of the evidence – and the basis for our strong belief that the new Act is a step in the right direction:

  • Criminal records checks are of very limited use in determining whether someone is more likely to commit a crime in the future, and cannot be used to predict what specific type of offence a person is more likely to commit.
  • Studies have found no link between having a criminal record and job performance.
  • There is absolutely no evidence linking non-conviction records to future behaviour.

You can also take a look at our best practice guides to criminal records checks and hiring and volunteer recruitment.

RESOURCES

10 things that will still be a crime after…

The cannabis industry is being legalized – but there are still plenty of laws that can criminalize recreational cannabis users.

Here are ten new crimes that will come into effect on October 17th.

1. A person 18 or over distributing cannabis to a person under 18 

Think twice before passing that joint. If an 18 year old passes cannabis to their 17 year old friend, it’s a criminal offence – punishable by up to 14 years in prison.

“Distributing” means a lot of things – whether you give, transport, deliver, or transfer cannabis, or even offer to give your underage friend some, you can be found guilty of a criminal offence.

2. Possessing a budding or flowering plant in public

Moving and want to take your home-grown cannabis plants with you? Make sure they don’t have any buds or flowers. You can move up to 4 plants in a public place – but if any of them are budding or flowering, it becomes a crime. Adults could face up to 5 years less a day in prison.

3. Selling cannabis without a license

This may seem obvious, but you can’t sell cannabis without specific legal authorization – and that is being tightly regulated by the provinces and territories. Licenses to sell cannabis aren’t that easy to get; you would know if you have one. So what can you do if you want to share a joint? Just give it away: distributing up to 30 grams dried cannabis to another adult is ok. Growing some cannabis at home, legally, and want to share the harvest with your adult roommate? Again, make sure to give up to 30 grams away, without getting anything in return. There are still a few murky areas though. What about picking up some cannabis for a friend when you go to the official cannabis store? You can certainly give that cannabis to the friend for free (as long as the friend is an adult, it’s less than 30 grams dried cannabis, etc. etc.). But can the friend pay you back? Maybe not. The real question here is, when does ‘distributing’ stop being ‘distributing’, and start to become ‘selling’? Unfortunately, we couldn’t find a clear answer to that – and you probably don’t want to be the first person to test out those definitions before a court. So the safest course of action is to give it away, or make your friends buy their own cannabis directly from an authorized retailer.

4. Possessing any “illicit” cannabis, or growing a plant from an “illicit” cannabis seed

Hey, I thought we were legalizing cannabis – so what’s all this about “illicit” cannabis? Illicit cannabis is cannabis that is still illegal because it “is or was sold, produced or distributed by a person prohibited from doing so under [the Cannabis Act] or any provincial Act or that was imported by a person prohibited from doing so under this Act.“

Still confused? You’re not alone. Here are a few examples. If you have a friend that grows more than 4 recreational plants at home – that’s illicit cannabis. If you live in Quebec or Manitoba and grow anything recreational at home – that’s illicit cannabis. If you buy cannabis from an unlicensed or unauthorized source, or get more than 30 grams dried recreational cannabis (or over 30 seeds or 2 pans of pot brownies – see point 6 below) free from a friend – that’s illicit cannabis. Were you passed a joint from an 18 year old in BC, Saskatchewan, Ontario, Nova Scotia, Newfoundland or Nunavut? Or – if Quebec’s newly elected government gets its way – an 18, 19 or 20 year old in Quebec? That’s now illicit cannabis.

If you rent an apartment in PEI and your landlord has said no recreational cannabis growing but you do anyways – illicit cannabis.[5] If you live in BC and grow recreational plants in an area that is visible to the public – illicit cannabis.[6] If you live in New Brunswick and grow recreational cannabis in your yard, but it’s not in a locked enclosure at least 1.52 metres high – ILLICIT CANNABIS. You get the picture. Sort of.

Oh – and if you’re wondering why we keep talking about ‘recreational’ cannabis, it’s because medical marijuana users are subject to an entirely different regulatory regime. Basically, it’s complex.

5. Driving with a THC blood concentration of over 2 ng/ml

This one is a bit of a stretch for our ‘top ten’ list, but only because these laws actually came into force in June 2018. Impaired driving – whether by drugs or alcohol – is, and continues to be, illegal. But there are new Criminal Code provisions that make it a crime to have certain levels of THC in your blood within two hours of having operated a motor vehicle. The difficulty with this approach is, unlike alcohol, the science shows no consistent connection between THC levels in the blood and impairment. And everyone clears THC from their body at different rates, making it very hard for people to know how long they need to wait before getting behind the wheel after having consumed cannabis. Heavy cannabis users – including some people who use medical marijuana – may have THC blood concentrations above the per se limit, despite having had a period of cessation for hours or possibly days. 

Bottom line is that besides abstaining for a decent amount of time, there is no good way to be sure you’re complying with the law – which is particularly concerning when that law is the Criminal Code, and punishments range from a fine to jail time. The higher the concentration of THC in your blood, the higher the potential penalty. We can expect some legal challenges to this one.

6. An adult possessing over 30 seeds – or more than two pans(ish) of pot brownies – in a public place

Most people reading government educational material will soon find out that adults can carry  maximum 30 grams of recreational dried cannabis in public. But did you know that a seed is deemed to be equivalent to a gram? If it’s a cannabis concentrate, the maximum amount is 7.5 grams. Pot brownies? Make sure that tray doesn’t weigh more than 450 grams. Don’t know what 450 grams of brownies looks like? We didn’t either. It’s just less than a pound – so this might help. And as with much of this stuff, this is about recreational cannabis – medical marijuana is a whole different question.

7. Importing or exporting cannabis without legal authorization

It’s illegal to take recreational cannabis across the border – in either direction – without a specific licence. And it’s also a crime to possess recreational cannabis for the purpose of exporting it. So keep it out of your luggage.

8. Cultivating, propagating or harvesting cannabis outside your own home (without legal authorization)

Live in an apartment and your landlord has prohibited you from growing cannabis? Don’t bring your plants to the office instead. It’s a crime to grow cannabis at a place that isn’t your home– unless of course you’re an authorized producer, with a legal licence. Or a medical marijuana user, in which case different rules apply.

9. Distributing cannabis to an organization

Want to send your friend some weed? While it would be legal to give it away for free (provided it’s less than 30 grams dried and your friend is an adult), it would illegal to give it to a mail courier to help with the delivery. And organizations, unless specifically authorized, can’t possess, distribute, sell, cultivate, propagate, or harvest cannabis either. So much for your neighbourhood cannabis/book club.

10. No more than four plants (depending on where you live)

Growing more than four recreational cannabis plants per household (except in Quebec and Manitoba, where you can’t grow any) is illegal. If you live in a province or territory that permits home growing, make sure your house doesn’t have more than four plants. That includes your yard, shed, garage, etc.. And if you have roommates – it’s four recreational plants per house, not per person.

CCLA Win

Victory at the Supreme Court: A fight for everyone’s right to privacy and equality (R v Le)

Victory! Today, the Supreme Court rendered a monumental decision recognizing that police carding in a private backyard constitutes arbitrary detention, a violation of the Charter. The Court stated the police have no legal authority to question people who are doing nothing wrong, nor demand their IDs. Both the majority and dissent recognized that a person may experience a police interaction differently due to their race and existing relations between the police and various racial groups, as we argued. The majority also accepted a position advanced by us stating even a short interaction with the police can have a significant impact on an individual and can be considered a form of detention. As a result of these findings, the Court set aside Mr. Le’s convictions and entered his acquittal. A true victory for civil liberties.

Post Below from October 12, 2018

A quick summary

Tom Le and four of his friends were sitting in the backyard of a home when police walked in. 20-year old Le is Asian, and his four friends (one, a resident of the home) are all Black.

That night the officers had been looking for completely different people, and were told by a security guard for the housing complex that one of the men sometimes hung around the address where Mr. Le and his friends were that night.

The officers went to the house, saw no wrongdoing, walked through the gateway without permission, and asked the racialized young men there questions about themselves, including asking for identification.

One officer asked Mr. Le for his identification and what was in his bag. At that point Mr. Le fled, but was soon apprehended and searched, and found to have a weapon and drugs in the bag.

What CCLA is asking for

We are intervening in this case before the Supreme Court of Canada on Oct. 12 to ask the court to protect individual rights to privacy and equality when it comes to interactions with police.

CCLA argues that the legal test that helps courts decide who has a reasonable expectation of privacy in a space like a backyard (and who as a result has standing to make an argument in court that their Charter right to be free from unreasonable search was violated) focuses too much on who owns or controls the property. Everyone – whether they are a homeowner, renter, or guest; whether low or high income – should be entitled to an equal zone of privacy in which they are able to move freely and with relative anonymity without unnecessary intrusion by the state.

We are also offering the court a test to determine when a person has been detained by police – a test that should properly consider the power of police, and the fear and distrust experienced by racialized communities in their relationships with law enforcement. Our goal is to seek guidance for police officers so that all individuals can walk around freely, and all can have equally meaningful access to their privacy, liberty and equality rights.

What are the civil liberties concerns?

There are intersecting privacy and equality rights in this case.

Imagine walking down the street and being stopped and questioned by police. Would you feel a little nervous and like you should probably stay and answer questions? Imagine if the questioning were done in an accusatory manner. Would you feel under suspicion? And how comfortable would you feel if this was in your neighbourhood with friends and neighbours nearby? Many people in Canada, including those who have been pulled over while driving, can relate to the feeling of fear and intimidation when confronted by police officers.

If you are a part of a racialized community, this may happen far too frequently to you or to people you know. For members of heavily policed communities, police encounters carry the sting of discrimination and a sense of injustice, along with uncertainty as to the results: a risk of abuse of power, escalation, charges, or use of force. How would you feel facing police in this context, and what would you do?

It is important for all people to have the freedom to move about safely in their communities, and in particular in private spaces. Police probably wouldn’t just walk into a private backyard in an affluent white neighbourhood and start immediately questioning those present – and it shouldn’t have happened in a community housing complex to a group of racialized young men. Privacy rights must be extended equally.

Why this case matters

This case raises serious questions about the equal enjoyment of privacy rights for all people, the impact of race in police encounters, the right to be free from arbitrary detention, and the need for courts to consider the effects of inequality and systemic racism on Charter-protected interests.

Bill C-75: Right goals, wrong tools

Over the next few weeks, witnesses will gather on Parliament Hill in Ottawa to share their views on Bill C-75, the federal government’s latest shot at Criminal Code reform. There is no doubt that our Criminal Code needs reform. It is rife with unconstitutional provisions, mandatory minimum sentences, and all manner of other ill-advised, expensive and ineffectual “tough on crime” provisions.

We have a justice system that continues to disproportionately incarcerate Indigenous People and racial minorities, a biased jury selection process, a culture of court delay, and a flawed bail system. It’s clear that we need to make changes.

While Bill C-75 tries to tackle these problems, it also creates new problems that need to be addressed. Some of the proposed reforms are great. Others don’t go far enough. And a few are a serious affront to fair trial rights and the presumption of innocence.

Canadian Civil Liberties Association is keeping up the pressure to make real Criminal Code reform a reality.

On Monday, Abby Deshman, CCLA’s director of the Criminal Justice Program, appeared before a House of Commons Committee to urge some specific amendments. Here are some key points from Deshman’s brief:

  1. We shouldn’t be pursuing “efficiency” by shortcutting constitutional rights (or, our justice system is not a fast food restaurant)

As our Michael Bryant, CCLA’s executive director and general counsel, has said before, Bill C-75 emasculates criminal defendants’ rights, in the name of speedy justice. Rights like an accused person’s right to cross-examine a police officer. The Bill proposes to create an evidentiary shortcut, outlining a few scenarios in which prosecutors would be able to put police officers’ affidavits and prior testimony into evidence at a criminal trial. Cross-examination might be allowed – but only if the accused requests it, and the judge grants it. These provisions are an affront to fair trial rights and the presumption of innocence. There’s also no evidence that they will speed up trials (see point 3 below for more on that). These clauses should be removed entirely.

  1. It will take more than restating the law to reform our bail system

We have said a lot about the problems in Canada’s bail system. Reform is necessary, and there have been some good suggestions about how legislation can reset legal culture. Bill C-75 is targeting the right problems here – but the proposed changes don’t go far enough. We (and others) think a complete rewrite of the law of bail and pre-trial release is necessary. But short of that, about smaller changes that will make a big difference in bail courts across the country, and help the operation of bail come closer to aligning with the presumption of innocence, the Charter right to reasonable bail, and the law. We are urging the Committee to take us up on these suggestions.

  1. And while we’re on the subject of “more is needed,” let’s look at jury selection reform and administration of justice offences too

Administration of justice offences are criminal charges for actions that, under normal circumstances, would be completely legal. Actions like drinking alcohol, being outside your house past 7 pm, or entering a Shoppers Drug Mart. They are crimes only because a court has previously ordered someone not to do these things, and they represent an enormous portion of the matters coming before our criminal courts. Surely our justice system has more important things it should be focusing on.

Bill C-75 proposes to create a parallel non-criminal process to deal with some of these matters – it’s an interesting idea, but without stronger provisions we’re worried that it will backfire. The decision of whether to send a person to this alternative process is entirely in the hands of prosecutors and police officers – who already have the power to decide not to charge someone, or withdraw a charge that has already been laid. Set against the background of a risk-averse system, this type of process is likely to widen the net of people caught up in the justice system. The Bill would create a new court proceeding that could be used to process people the police currently choose to release with a warning. Nothing in the law would require people who are currently being charged to be diverted to the alternate pathway.

More will also be necessary if the government really wants to tackle systemic racism and discrimination in our jury selection process. Lots of great suggestions have been put before the Committee this week; we hope they will be taken up.

  1. Sentencing reform needs to be done (more) carefully

The Bill proposes some broad-brush changes to sentencing in Canada. Maximum sentences for all summary conviction offences, for example, would be increased from six months to two years less a day. What doesn’t appear to have been considered, however, is that these changes would significantly restrict access to justice by effectively prohibiting law students, articling students, and paralegals from representing some of the most vulnerable accused persons. They would also have significant immigration impacts. Maximum sentences should not increase without also taking steps to insulate individuals from these collateral consequences.  (And, while we’re talking about sentencing reform, what happened to the promise to roll back mandatory minimum sentences?? We have a countdown clock – we’re still waiting.)

  1. Evidence-based solutions require… evidence

If you want to make the criminal justice system faster, you need to have evidence about what is unjustifiably slowing it down. Unfortunately, evidence is lacking. Bill C-75, for example, proposes to significantly restrict preliminary inquiries in the name of efficiency. We do know that cases with preliminary inquiries – a pre-trial process designed to ensure that the Crown has a solid case against the accused – take longer than cases without preliminary inquiries. But we don’t know that this process causes these cases to take longer. Cases that tend to use a preliminary inquiry may by nature be longer cases for any number of reasons. The most recent published academic study on this matter concluded that “alterations to the preliminary inquiry are unlikely to have a significant impact on the speed or efficiency with which cases are resolved in the criminal justice system.” And the Committee has heard from many witnesses arguing the preliminary inquiries help speed up the criminal process by weeding out unmeritorious cases and prompting early resolutions without a full trial. While the benefits of eliminating preliminary inquiries are uncertain at best, many in the legal community have also raised significant concerns about the impact that eliminating preliminary inquiries will have on the right to a fair trial.

There have been many good suggestions for amendments to Bill C-75 put before the Committee. We hope that the government is listening. But there is also a broader message here too: this Bill does not approach the comprehensive reform that our criminal justice system needs. Too many important sources of injustice (large barriers to record suspensions and mandatory minimum sentences to name just two) are left untouched.

We hope the government takes the steps necessary to fix Bill C-75. But even if it does, this will be just the first step on the road to meaningful criminal justice reform.

 

INCLO Report Release: Defending Dissent: State Practices that Protect…

New international report makes recommendations on how the rights to protest can be protected and promoted by governments.

(27 June 2018 — Geneva, Switzerland) The International Network of Civil Liberties Organizations (INCLO) and the International Human Rights Clinic at the University of Chicago Law School (IHRC) launched a report today that provides practical guidance on how law enforcement can protect human rights when policing protests.

Defending Dissent: Towards State Practices that Protect and Promote the Rights to Protest aims to bridge the divide between principles and practice. It offers concrete examples and analysis of existing laws, institutional mechanisms and processes, and deployment tactics that work to promote or, in some cases, undermine, protests and public assemblies. The report relies on interviews with policing experts in eight countries, and the expertise of INCLO member organizations engaged in advocacy on human rights and policing.

The publication highlights general principles, tactics and strategies through case studies of successful (and less successful) policing approaches gathered from countries around the world.

The report and its recommendations are organized around three themes: preventive measures and institutional design, tactics and the use of force, and accountability and oversight. Within these themes, the report identifies 12 core principles and 33 good practices essential for their realization.

The report offers authorities a toolkit to evaluate their existing policies, practices, and institutional mechanisms. It provides a detailed discussion on how to implement legal principles and signals the potential challenges that can be encountered in this process.

Protest and public gatherings are the only tools people have to express their grievances and to seek political, social and economic reform. Public protest and speech are quintessential to a free society, yet state policing institutions treat these as national threats, resorting to arbitrary, excessive and discriminatory force.

INCLO and IHRC report promotes an open, practical, and well-informed dialogue between states, policing institutions, civil society, human rights defenders and other stakeholders on human rights compliant policing.

INCLO is a coalition of national, human rights organizations from the North and South that act jointly to influence discussions on standard-setting and raise awareness on the proper management of assemblies.

International Human Rights Clinic at the University of Chicago Law School is a practice-based legal course for graduate students in law that represents clients and partners with organizations on human rights law related advocacy and research.

Quotes

“Freedom of expression and assembly are the bedrock of democracy, and there are international legal standards that safeguard these rights. However, there is an absence of research and direction from a human rights perspective that provides practical guidance for the implementation and application by the state and its policing institutions of these international standards. This report aims to fill that void,” says Rob De Luca from Canadian Civil Liberties Association (CCLA), one of the main authors of the report.

“This report provides an important tool for the work of national human rights organizations. It also brings in the global perspective to the global debate and it shows that the standards for which we fight are possible and have an empirical foundation,” says Marcela Perelman, one of the main authors of the report from the Center for Legal and Social Studies (CELS) in Argentina.

“Our hope is that the report will foster real—and much needed—dialogue between police and civil society by identifying concrete ways in which public speech and assembly can be, and sometimes are, protected by police departments. We hope to contribute to a better understanding of how the state and its security institutions should be ensuring access to this fundamental democratic right,” says the IHRC Director, Claudia Flores.

Downloads

Full Report
Executive Summary

Contact

Lucila Santos — INCLO’s Program Director — lsantos@inclo.net
Claudia Flores — IHRC’s Director — cmflores@uchicago.edu