Law tightens lid on police disclosures
Legislation severely limits release of records about innocent Ontarians, a first for Canada
Legislation protecting innocent Ontarians from the release of unproven allegations and mental health records in police background checks will finally come into effect nearly three years after it passed unanimously in response to a Toronto Star investigation.
The Police Record Checks Reform Act, passed in December 2015 by a vote of 93-0 at Queen’s Park, will become law on Nov. 1, fundamentally changing the rules around what police can tell prospective employers, volunteer agencies and foreign governments about Ontarians.
The law, the first of its kind in Canada, will severely limit police disclosure of so-called “non-conviction records” — allegations sitting in police computers and notebooks that were never proven, as well as 911 mental health calls that police attended and logged.
The legislation was prompted by the Star’s Presumed Guilty investigation that revealed tens of thousands of Canadians have records in police databases despite never having been convicted of a crime. Disclosure of those records has undermined careers and educations, crushed ambitions and limited international travel, the investigation showed. In many cases, it ruined lives.
“The legislation is airtight, the language is passed,” said Dorijan Najdovski, a spokesperson for the Ministry of Community Safety and Correctional Services, in an interview.
Even if there is a change in government in the upcoming election, the legislation is safe, he said.
“The only thing that could change is the exemptions in the regulations. But the actual bones of the legislation cannot be changed without a repeal,” Najdovski said.
“And I don’t see why any government of any political stripe would do that … Right-wing, left-wing, centre — this is one of the few pieces (of legislation) that’s a slam dunk.”
In one of the stories detailed in the yearlong Star investigation, a Toronto man studying to be a nurse was forced to quit because unproven charges from 20 years earlier appeared on a police background check. The reason? He had worked as a clerk at a comic book store on a day when it was raided by police on allegations of selling obscene material. The charges were quickly thrown out by a judge, but a record of them remained and forced his exit from a career that he dreamed of in health care.
A Caledon man’s dream of being a firefighter ended because a police check detailed a childhood friendship with a suspected drug dealer — even though he himself had no contact with police.
An Ottawa man lost a promising career with Air Canada despite never being charged with or convicted of any crime. But his record check showed police noted that he was seen with a suspected drug dealer in the low-income neighbourhood where he grew up.
A Toronto woman trained as a social worker had her career and personal life “ruined” by 16-year-old assault allegations from her then teenage daughter following a heated dispute — allegations that never led to a conviction.
In February, the Star told the story of Teresa Sanderson, a 39year-old woman who was training to be an RCMP officer last year when a background check turned up “occurrences” in Toronto police computers dating back to 1999.
She said she had no idea what the records referred to or how they got there. None of the allegations led to convictions. Still, her prospective career in the RCMP was over.
The legislative changes to take effect in November will come too late to help Sanderson, who has abandoned those career plans and is now working in retail purchasing in Winnipeg.
“Selfishly, it doesn’t do anything for me and my dream. It was a very unfortunate case that any of that could have been kept and used against me,” she said. “But it won’t happen for those in the future, so for that, it’s fantastic.”
Sanderson, who is still trying to have the records expunged, says the process in Ontario is a “nightmare.”
“To be one story that pushes the tipping point for those who have the power of legislation, that’s what history has been made of — people expressing their stories and creating a movement to correct wrongs,” she said.
In some cases, the victims of non-conviction disclosures are mental health patients.
When Ontarians call 911 during a mental health emergency, police are called to the scene. Those visits create permanent records in police databases.
Mental health records have been cited by U.S. border officials to deny entrance to Ontarians. In other cases, victims have told the Star that volunteer or professional opportunities have been lost because of long-ago mental health crises.
As many as one in three Canadians have some form of nonconviction record sitting in police computers, according to research from the Canadian Civil Liberties Association.
“The unfairness of disclosing mere allegations which has destroyed lives has been a major thorn for many years,” said Toronto criminal defence lawyer John Struthers. “The Star can rightfully take a great deal of credit for bringing this to light and ending an injustice.”
Another Toronto criminal lawyer, Howard C. Rubel, called the legislation “very important.”
“(It) will protect innocent people from being harmed by the inappropriate release of private information,” Rubel said. “I am hopeful police forces and employers throughout Ontario respect the new laws and the spirit in which they were made.”
The delay in implementing the law has been a mystery to lawyers and the public. With an election looming, there was growing concern the legislation would die on the vine.
Michelle Keast, a director with the John Howard Society, which was among the groups that consulted with the government on the legislation over the past two and a half years, said the ministry sprang into action in February after the Star’s story and new recommendations were published in a John Howard Society report.
“I think with the media pressure and election coming, they ramped it up and it came through. They were in touch with us not long after that,” she said. “We have long recommended restricting the disclosure of non-conviction information and called for consistency and clarity regarding the information that can be shared on police record checks across Ontario. We are pleased that ... the Police Record Checks Reform Act will come into force later this year.”
“Selfishly, it doesn’t do anything for me and my dream. But it won’t happen for those in the future, so for that, it’s fantastic.” TERESA SANDERSON, ABOVE