A check on background checks
Thousands of Canadians are discovering that records of even trivial contact with police can follow them for years and prevent them from getting a job or volunteering in their children’s schools. CHRIS COBB reports.
To protect her identity, court documents refer to her as J.N. She’s a journalism graduate now in her early 50s who applied for a media relations position at a Durham-area school board.
The board asked her to get a police records check as a condition of employment, so she did.
When it arrived, she was horrified to find it contained details of a 2006 family dispute that prompted her siblings to call police and resulted in her being charged with assaulting her aging father by allegedly hitting his leg.
More than a year later, Crown lawyers dropped the charge because it “lacked merit.”
J.N., who has no criminal record, asked the Durham Regional Police Service to remove the reference from her background check but they refused. She asked the Durham Regional Police Services Board to review the decision and they refused.
The force also processed tens of thousands of criminal record checks and police information checks for a myriad of other reasons — and these can prove the difference between someone getting a job or getting passed over or, in at least one case, being refused entry into the United States.
In Ontario the practice is now under scrutiny by a subcommittee of the Ontario Association of Police Chiefs, which drafted Canada’s first — and so far only — comprehensive guidelines for police checks in the country in 2011. Still, the guidelines are just that, and because individual forces are under no obligation to adopt them, some haven’t.
Ottawa police have not formally adopted the guidelines but have adopted some — including one that recommends a five-year retention of non-conviction information or contact with police.
But the CCLA wants the subcommittee to go further and put an end the routine release of information.
“Non-conviction records shouldn’t form part of the information that police release to potential employers or volunteer organizations,” said Deshman. “These records are by definition instances where people have not been found guilty of criminal conduct and contribute very little, if at all, to public safety or ensuring whether a person would be a good employee or volunteer. And they have an enormous prejudicial effect on thousands — tens of thousands — of people.”
Deshman credits the chiefs’ association with at least attempting to tackle the issue in a systematic manner, but says most of the policies are ad hoc and based on neither evidence nor study.
“Someone just decided that five years is an appropriate number,” she said. “People are finding that these records are following them and preventing them from getting jobs or volunteering at their kids’ school.
“We’ve been contacted by many students in nursing programs and personal support work programs who often get through years of study before they are required to do their placement,” she adds.
“They get their police background check, a non-conviction record, a withdrawn charge or allegations that never resulted in a charge come up, and after all that study, they can’t do their placement.”
Jacqueline Tasca, a policy analyst with the John Howard Society of Ontario, says the provincial government and police forces are beginning to appreciate how damaging the information can be.
“In Ontario I think there’s a good understanding of the negative effects these records have on people,” she said. “I see momentum for change here but in other jurisdictions, such as B.C., it’s much more difficult to see a way forward there. It’s quite a disparate picture across the country.”
Paul Cormier, a civilian attached to Waterloo police department and chairman of the chiefs’ subcommittee, agrees that non-conviction records are “an area of controversy” but says the checks were never meant as the deciding factor in a job application or whatever else they are used for.
“But obviously there is a difference between a conviction and just a notation that a police officer thinks you might have done something,” adds Cormier. “It’s night and day.
“It’s so context specific,” he adds, “but the more you get into areas irrelevant to a job and job performance the more problematic it becomes in terms of privacy legislation and privacy principles.”
The Ontario Information and Privacy Commission is also pushing for changes and says if police forces insist on releasing non-conviction records, it should be the exception, not the rule, and they should justify why releasing the information is necessary.
“The current system is awkwardly built on a consent model,” said Stephen McCammon, the commission’s legal counsel.
“The police are the record holder and when you or I go for a job or volunteer position the consent system means you do not have a choice and therein lies a problem for anyone with a non-conviction record. You either agree to the records check or you don’t get the position.”
The Ontario chiefs appear open to change, said McCammon, who helped draft the initial guidelines and pushed for a revision on the language involving the mentally ill who typically have more contact with police. (Before the changes, specific details of contact between the mentally ill and police — suicide attempts, drug overdoses etc. — were released on background checks. Now the language is more general, referring, for example, to 911 calls but not specifying the reason.)
“To their credit, they are moving on to realize that there are privacy rights at issue that aren’t related to mental health,” said McCammon.
Another major issue, say all advocates for change, is the need for an independent appeal process if a person with a non-conviction record feels the information is wrong or wants it cleaned from the record.
The current appeal process basically amounts to a request to police, who typically refuse without explanation.
At the very least, says McCammon, police should be obliged to give written explanations for their refusals, which would ensure each request gets proper consideration and provide a document that a person could use to further an appeal.
McCammon agrees with the chiefs and others that provincial legislation would be “helpful” to create consistent policy, but says agreement among all stakeholders could be just as effective.
The commission also says that, in an effort to avoid potential employers from discriminating against job applicants on the basis of background checks, checks should only be allowed after a jobseeker has received a conditional offer of employment.
The CCLA is involved in other cases, including that of a young black man from Ottawa who has never been charged with a crime, but whose career aspirations have been severely and negatively impacted by information police will not even allow him to see.
Police have told the CCLA that they won’t release the information because it might compromise future investigations, but the man, now in his late 20s, suspects he has been unjustly linked with gang members simply because they might have been childhood friends and neighbours.
Ottawa lawyer Paul Champ, who is representing the man and asking the privacy commission to intervene with police, says the man has seen some of the information through a federal government agency that rejected him for a position.
“It was like, ‘ He was in this park while this other guy was in the park’ and it was when he was a teenager,” said Champ.
“What? They’re relying on this to deny somebody a job. And he denies many of the facts we have seen, but just try to contest those facts. The Ottawa police won’t tell us anything — not one word.”
Police are doing street checks (“carding”) of young people and creating non-conviction records, he says.
“It’s outrageous,” he said. “If police want to use that for strictly internal purposes that could possibly be OK in some circumstances, but once they start treating the information as fact and sharing it with outside agencies you have a really serious problem because there is no opportunity to challenge the validity and accuracy of the information.
“And, more important, it’s a big blow to the presumption of innocence,” added Champ.
With the help of the Canadian Civil Liberties Association (CCLA) she took the case to court. A judge sided with her and the reference to the charge was removed. The force appealed to the Court of Appeal for Ontario and won on procedural grounds, but according to the CCLA, the police chose not to reinstate the information.
In the meantime, J.N. had decided to pass on the school board job to avoid the embarrassment of showing them the background check.
J.N. is one of thousands of Canadians whose lives are compromised by so-called non-conviction record checks — people who do not have criminal records and in many cases haven’t even been charged with an offence. Information released can include mere contact with police, charges that were dropped before a court appearance, and not-guilty verdicts, often based on lack of evidence.
But when it comes to getting what is often trivial contact with police expunged from a record check, the convicted person seeking a pardon has more legal rights than the nonconvicted or non-charged person who have none.
“There are so many people impacted,” said Abby Deshman, director of public safety programs for the CCLA. “I get calls pretty much every week from people across the country who have come up against a nonconviction record they didn’t know was there.”
Police in Canada pump out hundreds of thousands — perhaps millions — of background checks each year.
Last year in Ottawa, police processed about 47,000 checks for people working with the “vulnerable sector” such as hockey and soccer coaches and their assistants, summer camp counsellors and those working with the mentally challenged