Police chiefs call for presumed innocence in background checks

New voluntary guidelines call on police forces to keep mental health contacts and other non-conviction records confidential in most cases. Police chiefs are also calling on the province to bring in legislation on what police can and can’t disclose.

By: Robert Cribb

Police forces across Ontario are being told to stop disclosing unproven allegations, withdrawn charges and 911 mental health calls in background checks shared with employers, volunteer organizations and U.S. border officials.

The Ontario Association of Chiefs of Police (OACP) issued the strong new recommendations Wednesday amid an ongoing Star investigation documenting how the professional and personal lives of innocent Ontarians have been undermined by routine disclosures of non-conviction records.

The voluntary guidelines call on forces that sign on to keep mental health police contacts and unproven charges confidential except under exceptional circumstances. OACP is also calling on the government of Ontario to introduce legislation that would compel all of the province’s 57 police forces to follow clear rules about what they can — and cannot — disclose.

“The only way to ensure mandatory compliance is with the creation of legislation,” said Paul Cormier, co-chair of the OACP subcommittee that created the new guidelines. “It’s a good question why we don’t have legislation. I don’t think it’s ever been contemplated.”

As it stands, records ranging from police surveillance notes to mental health incidents that never prompted a charge or conviction are making their way onto police background checks and the computer screens of U.S. border officials, the Star investigation has shown.

The fallout includes lost jobs and educational opportunities, inability for some people to enter the U.S. and roadblocks to volunteering with agencies that serve vulnerable Ontarians.

Until now, only about half the province’s police forces had signed on fully to the existing OACP guidelines, said Cormier.

It’s unclear how that compliance level will be affected by the strict new rules, he said.

“It’s tough to predict. It certainly is a change,” said Cormier, whose own police force in Waterloo has been releasing non-conviction records on police checks in accordance with OACP’s previous policy.

“I think community pressure will help. People have been calling on this for years.”

Several police forces contacted by the Star on Wednesday said they will be reviewing the new guidelines before making any decisions on whether to adopt them.

Spokespeople with Peel Regional Police and Hamilton police said they are in compliance with the new guidelines, and a spokesperson with York Regional Police said the force will be signing on.

The Toronto Police Service, which has been criticized by lawyers, privacy advocates and citizens for releasing non-conviction and mental health records, is reviewing the new rules, spokesman Mark Pugash said in an email response.

“I’m still hopeful that all police services will accept the update,” said Abby Deshman, director of the public safety program at the Canadian Civil Liberties Association. “I want this to work. But I wouldn’t be surprised if compliance levels for the new guidelines are lower than we currently have … We think strong direction from the province will be needed.”

Deshman has met with representatives of the new Liberal government in recent weeks and says they appear “very open to considering legislative or other provincewide solutions if this guideline doesn’t result in substantial compliance.”

Paula Osmok, executive director of the John Howard Society of Ontario, said the new guidelines, if adopted, will “greatly reduce the amount of stigma and discrimination Ontarians with non-conviction records face,” but Osmok echoed support for the creation of provincial legislation.

The Star investigation has triggered hundreds of calls and emails from innocent Canadians whose lives have been upended by non-conviction records.

Nancy Lucas, a 60-year-old Whitby resident, recently had her application to volunteer with a community organization rejected after the criminal background check she was required to produce included a withdrawn 1994 charge for “uttering threats.”

At the time, she was going through a stressful divorce and was suffering from depression that prompted hospitalization, she says.

The alleged threat happened during a phone conversation with her then husband of 17 years from a hospital pay phone after she says she learned from one of her children that his girlfriend was in their home.

Directly after leaving the hospital, she went with her lawyer to the Pickering police station, where she says she was strip-searched, fingerprinted, had her mug shot taken, was handcuffed and transported to the Oshawa police station.

Rather than go through the costly process of fighting the charge, she says she agreed to sign a peace bond and the charge was withdrawn.

After a career working with children in schools without incident, the 20-year-old charge came as a shock when it reappeared on her police background check this year.

“Needless to say, I did not get the volunteer position,” she said. “After living peacefully and lawfully in Canada, born and raised and making it to 60 years without so much as a parking ticket, I find it unfair, unjust and absolutely ridiculous that this incident appears on any document that can affect my day-to-day enjoyment of living and travelling.”

Lucas went to her local police station earlier this month to apply to have the charge removed.

“I was told it will take six months and there’s no guarantee. They could say no and you’ve got no recourse,” she said.

Jennifer Temple, a 58-year-old Welland resident, says her entire life and career have been affected by a 1985 charge police laid in order to ensure her testimony in court against her then husband.

After her testimony helped convict him on a break-and-enter charge, her own charge was quickly withdrawn.

But it has left a permanent scar on her record that ended her career as a residential counsellor and blocked her ability to earn a good living and volunteer in her community, she says.

“I am one of the very many who has had my working life consistently damaged by non-conviction records,” she said. “In a world where people are fighting for jobs, it really takes you out. I was simply not employable in my field.”

Temple has spent the past four decades self-employed. She worked as a painting contractor, and now runs a rare books business with her second husband.

“It has impacted what I’ll be eligible for under the Canada Pension Plan, having worked minimum wage for so long,” she added.

Last year Temple paid $600 to a company promising to help expunge past police records. A year later, she’s had no confirmation that her record has been cleared, and the company is telling her there’s no guarantee it will work.

“Someone who has been arrested, tried and convicted and received a pardon is much more likely to be able to get a job than those who are pure as the driven snow,” she said. “If you weren’t convicted, it’s impossible. Is that not obscene?”