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Op-Ed: Ontario police background checks — damaging people's lives by law

By Paul Wallis     Jun 9, 2014 in Crime
Toronto - Revelations in the Toronto Star recently have highlighted serious problems with police background check information which has exposed people to employment discrimination and other malfeasances.
At the same time, the B.C. Privacy Commissioner has also weighed in with more issues of concern in this area. It's a systemic problem, and it's not getting any better.
The Toronto Star describes the problems in a paragraph or so:
… find yourself the subject of unproven allegations, withdrawn charges or secret police surveillance — or even make a mental health emergency call to 911 — and the routine release of that information in background police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.
The Star’s investigation has detailed numerous examples of how police checks conducted on innocent Canadians has ended careers, university placements, volunteer positions and caused havoc trying to cross borders.
Canadian Lawyer Mag.com’s In House website cites the BC Privacy Commissioner's concerns :
In what she calls “one of the most important investigation reports, if not the most important” she has issued, Elizabeth Denham looked at the increasing use of employment-related record checks that can disclose sensitive personal information including mental health illnesses, suicide attempts, and allegations that did not result in charges or convictions.
Background? What background?
This is private material by definition. None of this information should be publicly available from any source whatsoever. Let’s get this in perspective- Mental health, like any other kind of health, is a private medical issue. Allegations are not convictions. There is no legal basis for this information to appear on police background checks. They’re not law enforcement issues. They’re certainly not the business of employers or other third parties.
These background checks are indiscriminately releasing information which would not otherwise reasonably be expected to be disclosed to anyone, except perhaps a lawyer or a medical practitioner for professional purposes. They are incidental parts of police operational records. The police are under no obligation to release these materials. They’re being released simply because they’re on the system.
The catastrophic effects of the release of this information, whether consented to or not by the people affected, cannot possibly have been foreseen by those people. Do you remember ever incident in your life? Most don’t.
Just about everybody rings the cops, for example, at some point in their lives. Perhaps for a domestic dispute, or some incident with a neighbour, and this information is available to anyone able to ask for it, without regard to the privacy rights or security of the people involved?
Is this information secure? Can it be used against individuals by unscrupulous employers? What if it’s used as a form of blackmail or intimidation? Anything that looks bad can be used against anyone.
Apparently, the B.C. Privacy Commissioner has a few solutions in mind, one of which is this:
… Police should require employers to limit their requests for information about convictions to specific risk categories which are relevant to the person’s employment, such as drugs and alcohol, sex, violence, and theft and fraud;
Put less politely, the police background checks should do their jobs appropriately, not at the expense of citizens. The police should not have to be stuck with an “anything and everything” request framework, either. The information being released is obviously not in accordance with the real needs of employer background checks.
It’s also open to abuse, at least theoretically. What if an “employer” goes looking for information about a person for the purpose of harassment or to damage that person’s interests? How are the police supposed to know what’s a bona fide request and what’s not?
If Gargoyles R Us Fishmongers LLC asks for a background check, how are the police supposed to know that this is a non-existent company? How do they check these things? What if a real employer is trying to get information to use against an employee, and “legitimately” asks for a background check?
Not so simple — see what’s required to be released in background checks
In the interest of providing some balance — the content of these police record checks is well and truly on public record. This is the Ontario Provincial Police page on Criminal Reference Checks and Police Checks:
In compliance with the RCMP ministerial directive, Ontario Provincial Police now provides two kinds of criminal background checks in additional to a vulnerable sector check:
The Criminal Record Check will include the following information as it exists on the date of the search:
(a) Criminal convictions from the Canadian Police Information Centre, RCMP National Repository of Criminal Records and/or local police databases;
(b) Outstanding entries, such as charges, warrants, judicial orders, Peace Bonds, Probation and Prohibition orders;
(c) Absolute and Conditional Discharges (1-3 years), as set out in Section 730 of the Criminal Code of Canada (OPP Niche RMS Database only).
The Police Record Check will include the following information as it exists on the date of the search:
(a) Criminal convictions from the Canadian Police Information Centre, RCMP National Repository of Criminal Records and/or local police databases;
(b) Outstanding entries, such as charges, warrants, judicial orders, Peace Bonds, Probation and Prohibition orders;
(c) Absolute and Conditional Discharges (1-3 years), as set out in Section 730 of the Criminal Code of Canada (OPP Niche RMS Database only).
(d) Family court restraining orders;
(e) Criminal charges resulting in dispositions including, but not limited to, Stayed, Withdrawn, Dismissed, and cases of not criminally responsible by reason of mental disorder as listed on local indices;
(f) Police contacts including, but not limited to theft, weapons, sex offences, or violent, harmful or threatening behaviour.
Nobody can say that the RCMP or police have been given much room for discretion, either. This is “everything,” in point form, and that's what they've been directed to provide. Note the statutory issues in these checks, and “ministerial directive” quote. This information is required to be released, under these terms, apparently regardless of any other considerations.
To fix this mess, legislation needs to be enacted at provincial level, and quite possibly at Federal level to cover RCMP records. With much and well deserved respect to privacy advocates, the problem is right there in the information content descriptions.
Fix that, and you fix the problem. The B.C. Privacy Commissioner’s ideas also cover administration of these records. What’s to be done about the amount of damage people have suffered, however, is another matter. Compensation? Class action? Or a very chilly breeze blowing through the Canadian legal system? The first two seem preferable to a very grey, very contentious, and quite possibly actionable case of civil rights frostbite.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
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