The whole topic of criminal records is a complicated one. Most consider a “criminal record”, in the traditional sense, to be a finding of guilt with an accompanying conviction (essentially any sentence that is not a discharge). The reality is that Parliament has not actually defined what a criminal record is. The fact of being charged will often show up in police records. I have seen such notations when provided with criminal records of accused persons in court (in fairness, a withdrawal or acquittal is clearly noted and cannot be used for sentencing purposes, but it is still there). To some the very fact of a charge resulting in no finding of guilt is enough of a record to result in the taking of a negative view towards the individual who has had past contact with police.
One type of criminal records check is a vulnerable sector screening. This type of check must be authorized by the person who is being searched. It is most often requested by employers who are hiring for a position where the job applicant will be working with vulnerable persons such as young children, the elderly, and disabled persons. These police record checks will generally include all past charges that are still retained in police records, regardless of the outcome.
Tadros v. Peel (Police Services)
Facts
This issue has been before the Court of Appeal twice over the past few years. In Tadros v. Peel (Police Services), 2009 ONCA 442, leave to appeal denied [2009] S.C.C.A. No. 328, the Peel Police Service was appealing an injunction order prohibiting it from making any reference to the respondents withdrawn charges in response to an inquiry made by any organization. The respondent had operated a group home. In 2002 he was charged with with four counts of sexual assault and four counts of sexual exploitation, the complainants being residents of the group home.
The charges were withdrawn a year and a half later following the respondent entering into a peace bond. The respondent’s counsel stated before the court that his client “does not acknowledge the facts as alleged in the information”.
Even though the charges had been withdrawn the fact of the charges were included in a vulnerable sector screening which was requested by potential employers following the respondent agreeing to a vulnerable sector screening (the respondent had agreed to such a screening by the Toronto Police Services who then requested details from Peel police who advised Toronto police of the withdrawn charges).
Analysis
The application judge found that there was no Charter infringement with respect to the actual destruction of the records but made an order prohibiting Peel police from releasing the record to outside organizations.
The Ontario Court of Appeal disagreed. It first considered the right of the Peel police, under the relevant legislation, to disclose these records when the proper consent is given:
[40] Mr. Tadros authorized the Toronto Police Service to undertake Criminal Records and Vulnerable Persons Searches. The Peel Police Service disclosed the existence of the eight withdrawn charges against Mr. Tadros to the Toronto Police Service based on the consent forms signed by Mr. Tadros for the purpose of the Vulnerable Persons Searches that he authorized. Pursuant tos. 32(b) of MFIPPA, a chief of police may disclose personal information with the specific consent of the affected person. The information regarding withdrawn charges against Mr. Tadros was personal information under MFIPPA. There is no basis for an injunction to restrain disclosure where the proper consent is given. In our view, the proper consent was given by Mr. Tadros. There is no conflict between s. 32(b) of MFIPPA and the PSA or the Regulation that would operate to eliminate the consent exception to the presumption in MFIPPA against the disclosure of personal information.
The court went on to examine the applicant’s s. 8 (right against unreasonable search and seizure) and s. 7 (right to life, liberty, and security of the person) rights protected under the Charter (the appellant had cross-appealed on these grounds as the application judge had dismissed the Charter arguments). The s. 8 Charter arguments were disposed of on the basis that there was no actual search or seizure that took place:
[47] The information about the withdrawn charges was, moreover, a record of events that took place in a public courtroom. Disclosure of this information by the Peel Police Service to the Toronto Police Service is not a search. Nor is the disclosure by Peel a seizure; the disclosure did not involve the taking of any thing.
In examining the s. 7 issues the court considered whether there was state interference involving “profoundly intimate and personal choices”, and held that the respondent’s choice to seek a vulnerable sector screening did not create such interference. The court also addressed the respondent’s argument that, although it was his choice to seek the screening, not doing so effectively barred him from seeking and being hired from certain types of jobs, holding that “Section 7 does not guarantee a right to work in any particular job or career.”
The court’s analysis in Tadros involved the actions of the Peel police pursuant to legislation which authorized them to disclose these records. The actual constitutionality of the legislation itself was not argued and the court declined to address the issue, presumably leaving the door open for such constitutionality arguments in the future:
[48] Even if there was a search or seizure the respondent has not made out a violation of s. 8. The disclosure of the information was authorized by law, namely s. 32 of MFIPPA, and the respondent has not attacked the constitutionality of that legislation. The respondent has not been able to articulate any basis upon which it could be said that the search or seizure, if there was one, was not executed in a reasonable manner.
…..
[52] ….. In his factum, the respondent acknowledges that he has not mounted a constitutional challenge to the legislation but nevertheless claimed that the legislation was not reasonable. In our view, this argument is not open to the respondent. The only basis for finding that the legislation might be unreasonable would be by attacking its constitutional validity. Mr. Ruby on behalf of the respondent did not pursue the alleged unreasonableness of the legislation in oral argument.
J.N. v. Durham Regional Police Services
Facts
The respondent in J.N. v. Durham Regional Police Services, 2012 ONCA 428, had been charged with an assault within the context of a family dispute. The charges were withdrawn by the Crown. Following a criminal information request (CIR) with a vulnerable sector screening the fact of the charge was disclosed by Durham police. The respondent then took a number of administrative steps to try and prevent this disclosure which included a request for DRPS to remove the record, a request for reconsideration, and ultimately a review by the Durham Regional Polices Services Board. All of these steps proved unsuccessful for the respondent.
Analysis
Rather then seek a judicial review of the administrative decision of the DRPS the respondent sought an equitable remedy in Superior Court arguing that the DRPS violated a common law duty of fairness as well as the respondent’s rights under s. 7 and 11(d) (the right to be presumed innocent) of the Charter. The application judge quashed the decision of the DRPS and ordered that there be no reference to the withdrawn charge on any future CIRs.
The Court of Appeal allowed the appeal by DRPS on the grounds that the Superior Court did not have the jurisdiction to make this order as the proper procedure ought to have been judicial review. The court explained that the proper forum to hear this matter would have been Divisional Court pursuant to the Judicial Review Procedure Act and that the Act trumped the inherent jurisdiction of a Superior Court Justice.
In the appeal, the respondent raised arguments that her rights pursuant to s. 7 and s. 11(d) were violated. The respondent also argued a number of issues with the procedural process put in place by the DRPS. In considering some of the respondents arguments the court held that the may be worthy of consideration in the future. First there was the question of whether the Tadros decision requires a process be put in place by police services to seek to have non-conviction entries removed from a CIR (the respondent in J.N. had raised a number of concerns about the nature of this process):
[15] Whether the legal effect of the Tadros decision, and the principles underlying it, mean that the law requires police services to put in place a process whereby an applicant may seek to have a non-conviction entry removed from his or her CIR and, if so, what the nature of the process is to be, are important questions that a court may well have to determine at some point.
The court also considered the Charter arguments in the context of the jurisdictional issue:
[21] That J.N. sought to raise Charter issues in support of her arguments that the decisions should be quashed does not alter these factors. Many administrative decisions invoke Charter considerations, which are dealt with in the context of the judicial review process.
In allowing the appeal on the basis of a lack of jurisdiction, the court explained:
[25] Some may view this approach as technical and as a failure by this Court to address what are admittedly important issues. The law has long been clear, however, that jurisdiction is fundamental to a court or tribunal’s authority to deal with a matter.
Conclusion
Both Tadros and J.N. leave numerous issues open about the validity of legislation setting out the procedure for the disclosure of such records as well as whether there should be an administrative process in place to deal with this disclosure which would have to be consistent with the requirement for procedural fairness under administrative law. It is clear that the appropriate forum to mount any further challenge would be a judicial review of the decision of a police service to disclose the record.
This is an important issue which directly affects many people and is something I would hope will be litigated in the future. In our legal system it happens to often where people are charged with little evidence to support a conviction. It simply does not seem right that the very fact of a charge can have such an adverse affect on someone. We have courts for a reason and that is to determine guilt. Absent such a determination once a charge is dealt with then, in my mind, the fact of the charge should be completely expunged from all police records and databases.
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.
