A judge once told me about his own personal run-ins with law enforcement agencies when he was in his 20’s. It was the late 1960’s and he was attending a number of anti-war demonstrations (though he later confessed it was more about finding the perfect opportunity to pick-up women than about following his moral compass.) Needless to say, those efforts led to his arrest, many times over. He would later go on to say that given the circumstances we live in today he would never try and exercise his civil liberties now in the same way, for if he did, he assured me that he would never be able to later preface his name with Justice.
What is at issue today, and what the judge is alluding to, is the absence of a policy to govern the disclosure of both criminal and police records. Given this legal vacuum, law enforcement agencies are being handed far too much discretion concerning the release of individuals’ conviction and non-conviction records.
This discretion provided to local police agencies includes the collection, retention, and disclosure of conviction and non-conviction records. One example of this discretion in practice is when individuals make a destruction request (where an individual seeks to have their records or charges that did not result in a conviction expunged.) There is currently no policy in place or legal requirement to ensure that such destruction occurs, nor are there any requirements that those individuals are notified if their records are in fact expunged. Predominantly, the granting of dismissal of those requests rests on the internal policies of the police services themselves.
There needs to be greater understanding of the collateral consequences and the human costs that are associated with background checks and the myriad ways in which they perpetuate economic and social exclusion. Non-conviction records serve as the basis for denying employment, and act as a barrier for reintegration into society. Furthermore, there is no evidence indicating that disclosing such information materially reduces the risk of crime or violent offences in the workplace.
To illustrate these human costs that are being needlessly spent The Canadian Civil Liberties Association (CCLA) recorded 100 cases of individuals that are currently struggling with the impact of a non-conviction record. One individual that was interviewed, Mark De Pelham, had been fired from two customer service jobs because his police record check revealed pending drug charges that would later be withdrawn. Mark spoke to the consequences emanating from these disclosures, stating:
“…there are thousands of people out there who may have a criminal record, who may have a past conviction record, who have experienced discrimination in employment, who are now marginalized, who cannot find employment, who have stopped looking”
Having a criminal record is fairly common in Canada, and what gets included in that criminal history is fairly broad. According to Public Safety Canada data 23.2 percent of Canadian males over 12 have criminal records; for females over 12, it is 4.3 percent. There is a lot of misinformation surrounding questions regarding the removal and impact of criminal records. Many individuals, who have been charged with a criminal offence, but who have either been acquitted or have had their charges withdrawn or discharged believe that they do not have a criminal record. Often times court personnel will reassure them of this very fact. This is not entirely false; it is true that they do not have a criminal record of conviction. But, the information regarding the charges that have been laid can still be disclosed in a record check. While the Criminal Records Act (CRA) does stipulate specified time periods during which this information can be disclosed, there have been instances where such information has remained in the record, and as such, will appear in a record check.
Most people would assume that if they have never been convicted of a criminal offence, they do not have a record. While this assumption is entirely reasonable, it is also entirely false. Police records and the types of information that can come up on police checks contain an extensive, and some might say excessive, amount of information. This information can include any interactions individuals have had with the police for mental health reasons, if the police had to take them to the hospital, or if they have had to be transferred. This information can also include unproven allegations, withdrawn charges, acquittals and suicide attempts. Furthermore, if an individual has been considered a “person of interest” and has been subjected to police surveillance, even without ever having been charged let alone convicted, that information is also contained within this record. From 2010 – 2011 nearly half of all criminal court cases, approximately 43 percent of all adult criminal court cases in Ontario, resulted in stayed or withdrawn charges. However, all of those individuals now have police records. While these records do not indicate guilt, in many cases they can be just as personally and professionally damaging.
The CCLA released a report entitled Presumption of Guilt which argued that the prominence of disclosing “non-conviction” records is indicative of how police background checks are occurring in a legal vacuum. Furthermore, the report argues that this disclosure ultimately undermines the presumption of innocence. Employers and volunteer agencies are requesting comprehensive police background checks and as such, we need mechanisms in place that ensures police services are conducting more individualized assessments of requests.
Returning to the issue of criminal records, the main formal avenue through which individuals can remove some of the negative effects of having a criminal record is through being granted a pardon. However, the federal government has severely restricted the availability of securing a pardon in recent years. Changes to the granting of pardons include: disqualifying individuals who have been convicted of more than three indictable offences, increasing the wait time for applying to 5-10 years, and increasing the fee attached to applying for a pardon from $50 to $631, a staggering 421 percent increase. There has been no evidence brought forward in order to justify these changes.
There have however, been some progressive strides made in Ontario this past year. Under the proposed Police Record Checks Reform Act, the province would enact standards regarding the information law enforcement can disclose. Namely, the potential reform signals that local police will no longer be able to disclose mental health records to potential employers, and will only disclose acquittals in “limited circumstances. “
While the Ontario government’s efforts are laudable, the concern over the criminalization of character remains. As our look into police records can attest, we are actively punishing individuals for their history with law enforcement agencies by denying them employment, and ultimately, denying them their ability to provide for themselves and their families. Not only does this violate the proscription against punishing people twice for the same offence, but it also perpetuates this notion that people are being punished for their character opposed to what they have in fact done.
While it seems in our day and age that our anti-war demonstrator would never have gone on to become a judge, and would never have his name prefaced with Justice, it seems as though until we are able to remedy these collateral consequences we are also not able to use that word to describe our current criminal justice system.
Shelby Challis is a 2016 Master of Public Policy candidate at the University of Toronto’s School of Public Policy and Governance. She previously completed an Honours Bachelor of Arts degree in Political Science at the University of Toronto, and has since worked for the Ministry of Health and Long-term Care. Her policy areas of interest include healthcare finance, labour relations and security management.