Non-conviction “criminal records” threaten jobs and ruin lives

Many jobs and volunteer positions require a “vulnerable sector” police record check. The results often leave Canadians stunned. It is a rude surprise to learn that you have a “record”, despite never being charged or convicted of a crime. A shop-lifting accusation may show up as theft occurrence. A traffic stop with a friend who is suspected of drug dealing can link someone to a drug investigation.

Worse yet, it is very difficult to get the police to delete these grossly misleading records. The disclosure of non-conviction records is stigmatizing and undermines the presumption of innocence.

Read a recent Toronto Star article, “No charges, no trial, but presumed guilty”, to see impact of these non-conviction records of the lives of people.

The Canadian Civil Liberties Association (CCLA) and the John Howard Society of Ontario new reports  argue that the presumption of innocence is being undermined by a patchwork of guidelines across police forces in Canada and a lack of legal framework governing what information is released.

Read the John Howard Society of Ontario report here.

Read the CCLA report here.

How can non-conviction criminal records be suppressed or purged?

There is no easy way to suppress non-conviction records. The CCLA report states:

Suppression requests

Most police services will release your record check directly to you. If you see a non-conviction entry on your record check, there may be process in the police service allowing you to request that the police suppress that particular entry. As with a purge request, you will probably have to write directly to the police to request that suppress a particular entry. See the section above on purge requests for some examples of what you can include in such a request.

What if police refuse to purge or suppress my non-conviction information?

Depending on the police force, there may be an appeal procedure if they won’t agree to purge or suppress the information. You should ask the specific police agency you are dealing with. You may need to write to the “appeal panel” to tell them why you think your record should be purged or suppressed.

What if there is no appeal process, or my appeal is rejected by the police?

If you are not successful after talking with the police directly and/or pursuing the appeal (or if there is no means of appeal) there are independent oversight bodies that may be able to assist you. You can try appealing the police decision to the relevant police commission, police services board or independent civilian oversight agencies. Again, you should set out why you think the police made the wrong decision in your case. You can also complain about the police policy and process in general.

After you have exhausted all these avenues of possible appeal, you can start a judicial review of the final decision in your case. It can be difficult to launch a successful judicial review without a lawyer’s help.

Ontario needs new legislation to control the disclosure of non-conviction records

The Ontario Court of Appeal has made it clear that all appeal routes through the police must be exhausted before a person can ask the courts to force the police to purge records (see: J.N. v. Durham Regional Police Service, 2012 ONCA 428). Once all appeal routes are exhausted, an individual can go to court to seek judicial review of the police force’s decision.

In Ontario, the application for judicial review of a police force’s decision keep records goes to the Divisional Court. In judicial reviews, however, courts usually must defer to the ruling of the administrative decision maker (i.e. the police force).  As a result, the Divisional Court will likely uphold the decision to keep the record, as long as the police force considered all the relevant circumstances.

Innocent people should not have to jump through endless legal hoops to purge inaccurate police records. Nor should not be up to each police service to decide what records they want to maintain and disclose. The Ontario Government needs to tightly restrict the disclosure of non-conviction records and establish a process that allows people to easily purge misleading police records.