Rights code penalizes the innocent
Legal quirk gives ex-criminals better workplace protection in Ontario than thousands never convicted of anything
Commit a crime, get convicted and later secure a pardon and you are protected from workplace discrimination under Ontario’s Human Rights Code. But find yourself the subject of unproven allegations, withdrawn charges or secret police surveillance — or even make a mental health emergency call to 911 — and the routine release of that information in background police checks could undermine your career aspirations with little recourse.
That legislative quirk in the provincial Human Rights Code creates what many lawyers and human rights advocates call an indefensible paradox: Ontarians who commit crimes are better protected from workplace discrimination than those who have never broken the law.
“This does appear to be something that just wasn’t addressed when that part of the Code was drafted,” Barbara Hall, chief commissioner of the Ontario Human Rights Commission, said in response to an ongoing Star investigation into disclosure of nonconviction records in police background checks.
“I think it’s time to look for clearer protection in the form of legislation.”
As it stands, hundreds of thousands of innocent Ontarians with so-called nonconviction records buried in police computers have little recourse under the province’s Human Rights Code if the details are disclosed on police checks that compromise their employment.
More than a dozen leading experts interviewed by the Star call it a serious legislative oversight that exposes the innocent to discrimination in the very law designed to protect Ontarians from discrimination.
The Star’s investigation has detailed numerous examples of how police checks conducted on innocent Canadians have ended careers, university placements, volunteer positions and caused havoc at border crossings.
“With growing public awareness of this and all the support on this from the policing community, the mental health community, human rights community and others, any government would want to address it,” said Hall.
So far, responses from the three main provincial parties have ranged from broad reform commitments to complete silence.
The NDP told the Star it would seek legislative change. The Liberals said they would review recommendations in two recent reports on the issue by the John Howard Society of Ontario and the Canadian Civil Liberties Association.
The Tories have not responded to repeated requests for comment.
“The proposition that convicted individuals should get protections but people only charged — or with charges dismissed or withdrawn — should suffer under the stigma is the height of absurdity,” says Ann Cavoukian, Ontario’s privacy commissioner, who supports legislative reform. “It just makes no sense.”
The current law is a patchwork that has “no logical rationale” and is “ultimately unjust,” said Abby Deshman, a chair of the Canadian Civil Liberties Association.
“What does not make sense is to provide this protection for individuals with convictions but leave those who are legally innocent open to discriminatory and unfair treatment. It does not appear that this was a conscious choice on the part of legislators.”
Andrew, whose name is being withheld at his request, says he’s lost at least two jobs in his field — and many more he’s simply not applied for — due to a theft charge nine years ago that was withdrawn and never proven.
It happened when shoplifting alarms went off at a Sears store as the then 21-year-old was seized by security and told to wait until police arrived. No stolen merchandise was ever located. He now believes a security sticker stuck to the bottom of his shoe triggered the alarm.
The theft charge was quickly with- drawn by the Crown at the time and he later had his record and fingerprints destroyed.
But it all remained in police computers and later showed up in employment background checks, he says.
Most recently, the graduate in health studies applied for a position at a Toronto hospital last year that required a background check. His nearly decadeold withdrawn theft charge was clearly listed when he picked it up from Toronto police.
“I lost the job. It’s embarrassing. I didn’t know this would show up. I haven’t committed a crime.”
He has since stopped applying for positions in his field.
“I know they’re going to figure it out. Most of my friends are working in hospitals now and I don’t want anything to get out. It’s constant hiding all the time.”
Andrew now works at a pest control company — a job that didn’t require a background check.
In addition to career limitations, he says he’s avoided travelling to the U.S., missing family weddings and funerals because of the risk of being stopped and turned back.
“A lawyer told me that even if a record is withdrawn, the border can still see you have had a record. I’m afraid to test it because I know if I get rejected once, I’ll just keep getting rejected over and over.
“It’s like a sword hanging over your head. If I had done anything, I would understand. I just want it to be gone. But it doesn’t go away. I can’t get it out of my head.”
Leaders in Toronto’s legal community interviewed uniformly favour legislative reform to protect the innocent from discrimination.
“I don’t think anyone, when they were drafting the Human Rights Code, turned their mind at the time to all sorts of other information that police would collect and disclose that could result in discriminatory impact,” said Toronto lawyer Jonathan Shime.
“The technology that we currently have is such that one interaction with police that makes its way into a database somewhere is accessible to such a wide variety of people was never contemplated.”
Toronto lawyer John Struthers calls the lack of protections for Ontarians whose careers, mobility or lives are undermined by the disclosure of unproven allegations “un-Canadian.”
“How can it possibly be that disclosing unfounded allegations, lies, withdrawn charges and any police officer’s opinion of you is anything but unfair?” he asks.
“If we don’t control information we will have ceded unlimited power to the police to blacklist almost anyone . . . It ought to be illegal.”
Section 5 of Ontario’s Human Rights Code prohibits discrimination in employment on the basis of a “record of offences,” including an offence in which a pardon has been granted.
The Code does not explicitly address discrimination based on allegations of an offence that has never been proven.
And so, say legal experts, discrimination based on nonconviction records released to employers or prospective employers in police background checks is not prohibited.
In a key case before the Human Rights Tribunal in 2009, an Ontario man claiming he’d lost two jobs be-
cause of nonconviction records argued that “the legislature could not have intended that a person convicted of a criminal offence would have greater protection than a person only charged.”
His argument was dismissed by the Tribunal.
“Although I appreciate the appli- cant’s arguments in this case, his position cannot succeed,” says the ruling. “The language of the statute is clear and unambiguous and provides that ‘record of offences’ covers only persons convicted of an offence.”
It’s a conclusion that has established little consensus.
Other provinces and territories — including Manitoba, British Columbia and the Yukon — provide much more vigorous protection for those with nonconviction records.
In 2006, a B.C. Human Rights adjudicator made a very different finding in a similar case involving a woman fired from her job at Winners after the store discovered allegations against her six years earlier of theft in which no charges were laid.
The adjudicator ruled it would be “absurd” if the fired employee was better protected by the code had she been charged or convicted than if she had never received a charge or conviction.
In the end, the ruling extended the protections available to British Columbians with criminal convictions to those “for which no charges were laid as well as to those for which charges were laid but no conviction is registered.”
While licensed professionals such as nurses, teachers, doctors and others must often undergo annual police checks, there is an ever-widening array of employers who are also demanding the checks.
Tim Hortons, for example, requires criminal checks for “sensitive roles” in the company, a spokesperson said.
The exponential growth of police record checks — Toronto police alone have seen a 92 per cent increase in requests over the past five years — is becoming “ludicrous,” says Toronto lawyer Howard Rubel.
“Without legislation preventing employers from asking for this, it becomes difficult for employers not to ask for it.
“No one wants to be told you should have done it.”
Eric Storey, a human resources specialist in the not-for-profit sector who routinely relies on police record checks in hiring decisions, says public fears about the information being misused or accepted without proper assessment are well founded.
“Too many hiring decisions are made by people who aren’t trained (human resources) professionals or are so overwhelmed with workload that fair treatment takes a back seat to expedience,” he says.
And any concerns raised in police checks — even unfounded allegations — trigger natural employer concerns about protecting vulnerable clients, he said.
“The nightmare situation for a (human resources) professional would be to hire someone who later causes terrible harm, and worse, turns out to have a record that, known beforehand, would have prevented the hire in the first place.”
One fix, says Storey, is improving what data is reported in police record checks and better hiring decisions by employers “made with greater care and legal regard.”
But legal experts say the real solution here is ensuring those records aren’t available for disclosure in the first place.
“If the police attend at your home and arrest you for bank robbery and once you are in the driveway in the police car they receive a radio call indicating that they are at the wrong address, and they remove the handcuffs and apologize, the records will reflect that you were arrested for robbery,” says Toronto lawyer Rubel.
“If the call comes after they take you to court for a bail hearing, and you are apologized to and unconditionally released, the records will show that you were not only arrested, but then charged with robbery, and that the charge was ultimately withdrawn. And you will be left explaining to prospective employers that it was all a misunderstanding. Good luck.”
As an organization with privileged powers and the ability to collect information, police are in a powerful position in a society where information is critical, says lawyer Shime.
And that means better controls on how that information is shared.
“The opportunity for abuse is ever present. In Canada, there is far too trusting an approach that police will do the right thing. It’s darkness in a place where there should be light.” If you have a story to tell, contact Robert Cribb at rcribb@thestar.ca