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CBA resolution calls for limits on disclosure of non-criminal records

We need legislation to protect people’s privacy – especially those who are marginalized.

Police car

Anyone who’s ever watched a cop show knows that the perpetrator is often caught thanks to a fingerprint left at the scene.

What’s less well-known is that even minor interactions we have with the criminal justice system can leave a fingerprint on the record – literal or virtual. Someone looking for a job or a travel visa can be tripped up because they were once implicated in an investigation, even if they were never charged with or found guilty of an offence.

One of the three resolutions up for discussion at this year’s AGM would have the CBA urge governments of all levels to limit the disclosure of non-conviction information that resides in law-enforcement databases, as well as to provide a way for people to review that information and address any errors or immaterial content.

“It’s an important initiative that legislation could support to protect people’s privacy and protect people who are marginalized,” says Tony Paisana, L&LR Coordinator for the CBA’s Criminal Justice Section. “Numerous studies have concluded that people from marginalized and racialized communities are far more likely to interact with police at a disproportionate rate, and these non-conviction records are created at a much higher rate with respect to these people who are already at a disadvantage.”  To see their opportunity at getting a job or an education thwarted because of a record that they had no opportunity to challenge does not reflect our Charter values, he says.

In November 2018, legislation came into effect in Ontario — the first of its kind in Canada — that outlines what can and cannot be included in a police background check.  The new rules were endorsed by the Ontario Chiefs of Police and significantly limit the ability to disclose non-conviction information.

The CBA’s Criminal Justice Section addressed the issue in a 2016 submission during a review of the federal Criminal Records Act. “A ‘fingerprint’ can be created from investigations, charges, withdrawals and other practices not resulting in convictions,” the submission reads. “The subject of what, if any, non-conviction information should be disclosed by police is a matter deserving of further consideration by Parliament.”

While the Criminal Records Act provides for records of absolute and conditional discharges to be expunged after a period of time, there is no such provision for stays of proceedings or withdrawal of charges, the submission notes, adding, “in our experience, those records routinely appear as part of criminal records checks.”

In its 2017 report, Collateral Consequences of Criminal Convictions, the CBA notes that there are no specific statutory provisions directing how police should deal with most non-conviction dispositions in their records. Police records can be stored in local, provincial, territorial and national databases, and local police generally decide, within established limits, what to upload to the national database, where it is available to law enforcement agents across the country. A national database can contain information like “investigative notations, police flags of observed suicide-related calls or behaviour, pending charges” and, if the time limitations haven’t passed, absolute or conditional discharges.

“This means that a variety of non-conviction records, including withdrawn charges, acquittals, mental health act apprehensions and suspect information, can be included in different levels of record checks,” the report says. “Although federal, provincial and territorial privacy legislation restricts the information police can release, record checks generally operate based on an applicant’s consent to release of the information. Consent may be a sufficient basis to authorize the release of non-conviction information under some privacy statutes.”

A wide range of the information included in national databases is also made available to international law enforcement agents, leading to Canadians being denied entry into the U.S., or refused permission to participate in “trusted traveller” programs like Nexus “due to non-conviction dispositions and mental health-related police contact records.” That denial then creates an entry in U.S. databases, where it is likely to remain, the report says.

Travel is just one area of concern – job seekers or would-be volunteers needing a security clearance, people seeking housing, or those involved in matters before family courts can also see their cases tarnished by the fingerprints they leave in the criminal justice system.

What do you think about the resolution? This year we’ve set up a discussion board where you can have your say – all you need is your member number to log in. If you want to propose an amendment to the resolution, send it to no later than Jan. 25.