CCLA Recommendations on Record Retention

In August I blogged about the disclosure of police records, specifically those which did not result in a conviction.  The status quo puts a great deal of authority in police forces to determine which records are retained irregardless of whether a court made a finding of guilt.  This is a major problem which, in my mind, affects both privacy interests as well as the presumption of innocence.

According to this article from CBC, the Canadian Civil Liberties Association has released a report on the issue and made seven recommendations:

1. Non-conviction records should be regularly reviewed and destroyed in the overwhelming majority of cases.

2. Non-conviction records should be retained for inclusion in a police background check only in exceptional cases where police believe that doing so is necessary to reduce immediate public safety threats. The decision to treat a case as an exceptional one should be done at the time that the non-conviction record is created; i.e., immediately after the charge is dismissed, withdrawn or otherwise resolved by way of a non-conviction.

3. Where the government requests that a decision be made whether to retain a non-conviction record, the affected individual should be notified and provided with a right to make submissions.

4. If it is decided that retention is appropriate in a given case, the affected individual should have a right of appeal in front of an independent adjudicator.

5. Where non-conviction records are retained, they should be disclosed only in relation to certain employment or volunteer positions.

6. Proper monitoring mechanisms regarding the use and impact of all forms of police background checks should be put in place, including adequate data collection and public reporting.

7. Provincial human rights legislation should protect individuals from unwarranted discrimination on the basis of non-conviction disposition records.

To date, neither the Supreme Court or the Ontario Court of Appeal has directly addressed this issue (cases that made their way to the OCA were dealt with based on other grounds).  I would expect, with the increased attention both in the media and among the defence bar, that the issue will be litigated in the future by way of a judicial of the decision of a police service.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.