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Information of Concern

Network, Fall 2006

Theresa Claxton had no experience with police record checks until she applied for one of her first volunteer positions. At the time, her only knowledge of police record checks came from the experience of friends and acquaintances. She assumed that the challenges they faced when trying to secure employment, volunteer positions, or school placements were the result of a criminal record. What Theresa discovered about police record checks is something that affects the lives of hundreds of people with mental illness every year.

Theresa served on the board of directors at a sistering organization that helps children and youth with disabilities. As chair of the agency, it came to her attention that the organization was hiring volunteers to work with a vulnerable population without having them complete a police record check. The board decided to initiate the process, and Theresa asked all staff members and volunteers to comply.

After being on the board for a number of years, Theresa decided to volunteer as a sister. Under the policy she had implemented, she was now required to undergo another police record check. She consented, and to her surprise a few weeks later, she was called into her executive director’s office. Theresa had no idea what the meeting was about, because she knew she did not have a criminal record. Her boss explained that the form had been returned to the agency with a note saying that the police had ‘information of concern’ about Theresa. ‘It was quite embarrassing,’ Theresa recalls. ‘I never disclosed anything and did not take the volunteer opportunity. I made up some sort of excuse as to why I could not volunteer. It was quite devastating.’

Theresa did not understand why she had a police record, but the thought of it made her apprehensive. ‘I started to become fearful and a little paranoid. Every time I heard a siren, I thought the police were coming to get me. I had a police record and it meant that the police were looking for me – it created this thinking and logic.’

Eventually, Theresa found out that she had an opportunity to get a copy of her police record. Of course, there was a charge for the service. It was 50 dollars, and at the time she was living on a limited income and had to ask her parents to loan her the money. This resulted in numerous questions from her parents, provoking even more anxiety.

Once Theresa received a copy of the police record check, there were more questions that needed to be answered. The report, recalls Theresa, stated that there was ‘police contact due to a mental health crisis, something about a suicide attempt, and something about a caution.’ Why were the police keeping personal health information in their database, she wondered? Why was she not made aware earlier that she had a police record? And why was the information being released to a third party? If someone had diabetes or suffered a heart attack, would the police flag that as ‘information of concern’ for potential employers? Consumer groups, health care providers, and mental health advocates across the province are asking the same question: Why is mental illness being treated as a criminal offence?

To begin, criminal record checks and police record checks are not the same thing. Criminal record checks show information only about convictions a person has received. Information is obtained from the Canadian Police Information Centre (CPIC), which is operated by the Royal Canadian Mounted Police. CPIC’s automated criminal convictions records retrieval system, set up in 1972, is accessible to all law enforcement agencies across Canada. Over 60,000 police officers have access to the same information on individuals who have a criminal record for any criminal code or other federal statute offence. Included are criminal records of persons who have been judged not criminally responsible for an offence because of a mental disorder, as well as individuals pending criminal charges or those on probation. Criminal record checks are often requested by banks, retailers and other employers who have financial security concerns. Employers can only obtain criminal record information if the individual gives permission. No one (except law enforcement agencies) can access another person’s criminal record without consent of the person to whom the record relates.

Police record checks are much broader than criminal record checks. A police record check includes a criminal record check, plus a search of the local database maintained by the police agency where the individual resides. Information stored in a local database will relate to any involvement with the police, such as convictions, charges, or information about an individual as a complainant, victim, suspect, or witness to an occurrence, including allegations of offences where charges were not laid. Any contact with the police, in fact, will result in the police recording information relevant to the incident – reporting lost identification, for example, would result in a police report coded as a lost property occurrence. Similarly, incidents relating to the Ontario Mental Health Actare also stored, including voluntary and involuntary transfers to medical facilities.

Police record checks are intended for individuals seeking employment or volunteer positions where they will be responsible for the well-being of one or more children or vulnerable persons. The Criminal Records Act defines children as ‘persons who are less than 18 years of age.’ It defines vulnerable persons as ‘persons who, because of their age, a disability or other circumstances, whether temporary or permanent, (a) are in a position of dependence on others; or (b) are otherwise at greater risk than the general population of being harmed by persons in a position of authority or trust relative to them.’ As mental illness is considered a disability, persons with a mental illness are included in the definition of vulnerable. The Act further states that when an individual applies for employment with an employer responsible for vulnerable persons, the employer may request that the police query the pardoned sex offender registry. However, there is no mention in the legislation of a check for incidents linked to the Mental Health Act.

Police record checks are used widely by many volunteer agencies and employers who are guided by a duty of care for their clients. The numbers vary depending upon the size of the city or region and how many agencies are requesting vulnerable sector searches. The London Police Service, for example, completed 16,263 checks in 2005, while the Toronto Police Service completed close to 32,000 in the same year.

Persons with mental illness may come into contact with the police for a variety of reasons, many of which are not criminal in nature. When a loved one is in crisis, a family’s first reaction is to call for help, and often they end up calling the police. But what family members do not realize is that their call for help often results in a police record.

‘I have been formed,’ says Theresa, referring to the Mental Health Act form that family members can use, with authorization by a justice of the peace, to compel police to put someone in custody and take them to a doctor for examination. ‘They have come to my house looking for me and escorted me to the hospital, but it never came to my attention or my family’s attention that I would have a police record. At no point did anyone tell me a police record was being generated.’

When families do find out that their loved ones have police records, they may be outraged and confused. But this is not the only challenge family members and consumers must face.

Retention of records varies among police agencies, ranging anywhere from two years to 35 years, or even longer, depending on the type of incident and the local policy. Criminal convictions, regardless of the seriousness of the offence, are permanently recorded, unless the applicant has been granted a pardon. Similarly, a murder investigation, even without a conviction, will continue to show up on a records check and vulnerable position screening. Records of police investigations of less serious incidents may be kept on file for shorter periods of time. Apprehensions under the Mental Health Act, for example, may be stored for five years before the record expires and the incident is deleted. As each police occurrence report reaches its expiry date, it is automatically purged from the system.

Mental illness, however, is often cyclic in nature, and this poses a challenge. Many consumers will experience episodes of illness followed by periods of recovery. As frontline responders when someone is in crisis, the police have become de facto mental health workers. But repeated contact with the police will result in a continuing police record, as new incident reports replace the earlier ones.

‘If a police record is kept for five years plus the current year,’ observes Theresa, ‘then in my case and in the experience of my peers, there is the possibility that we will continue to have police records for a long time, as long as society relies on the police to escort individuals while in a mental health crisis.’

With so many local police forces across Ontario, there is no standardization among agencies concerning the coding, retention and release of information. Each Ontario Provincial Police detachment, federal detachment and municipal force has different standards and processes for conducting police record checks. Information requested on the application forms may vary. Some forces will ask an applicant to list complete addresses for the past three years, while others will request information on the last five or ten years. In addition, there are no universal police policies in place to guide police agencies around issues of disclosure of personal health information, which means that information is released based on the personal discretion of a commanding officer or records management personnel. Some police agencies will release all information that is found in the record, regardless of the type of position the person is applying for. Other agencies will treat each case individually and make a decision based on the position itself. Furthermore, information may be released to the individual, to the agency, or both, as each police force has different rules and procedures.

Regardless of the inconsistencies and lack of standardization among Ontario police forces, releasing information obtained under the Mental Health Act is stigmatizing and reinforces the assumed link between mental illness and criminality. It equates incidents where an individual may have behaved in a ‘disorderly’ manner – which the courts have interpreted to mean behaviour that is to some extent irrational, although not necessarily unruly – with criminal convictions, sexual offences, and violence. The fact is that research indicates people with a mental illness who do not have a substance abuse problem are no more likely to be violent than the general population.

Including information about police encounters lowers the burden of proof from ‘beyond a reasonable doubt,’ in the case of a criminal conviction, to ‘reasonable and probable grounds,’ which is all that is necessary for an apprehension by police under the Mental Health Act. An officer can bring someone to a hospital for an examination as long as the person ‘apparently’ has a mental disorder and has threatened or attempted to harm themselves, has behaved violently or caused someone to fear bodily harm, or has shown a lack of competence to care for themselves. Police must stay with the person until the facility decides whether to admit them. Frequently after evaluation, the individual is simply released and returns to the community.

When someone with a history of mental illness who has had contact with the police is required to complete a record check, they may be forced into an uncomfortable position – having to disclose their illness in order to explain why the police have ‘information of concern,’ or to withdraw their application. This situation may contravene the Ontario Human Rights Code, which protects the individual against discrimination based on employment-related medical information. The Code requires that, if a potential employee’s disability affects his or her ability to perform the essential duties of a job, this assessment can only take place after a conditional offer of employment is made. Not surprisingly, the process of police record checks may act as a disincentive for people with mental illness to attempt to enter or return to the workforce. While the choice to participate in a police record check is called ‘voluntary,’ the likely consequence of refusing to participate is to be excluded from consideration for the position.

However, there are progressive police agencies within Ontario who are working with various stakeholder groups and developing new systems that are fair and sensitive to the issues around disclosure, especially those that are of a personal or medical concern. The London Police Service, for example, has been working on ways to improve their system since formalizing the process in 2000. One of the many contributing factors that led to the new system and its development was a London Police Service study indicating that police contact with people with serious mental illness had doubled from 5,000 to 10,000 during 1998-2001.

The London Police Service’s mandate for record checks is to protect children and the vulnerable sector while at the same time providing a fair and non-discriminatory process for the applicants, as many agencies rely heavily on volunteers.

The London Police Service began screening in 1988 for volunteer agencies and completed approximately 700 checks per year during that time. ‘The process of police record checks has come a long way,’ says Sherry Joyes, supervisor of the Central Records and Freedom of Information Unit at the London Police Service. ‘The initial process when applying to work with the vulnerable sector involved a police records check whereby the agency provided their own information form,’ says Sherry. ‘It was a blanket approach. The records screening operator would look at the information available and indicate on the form whether or not we had information of concern. Negative behaviour or interactions with the police were deciding factors in this determination,’ states Sherry. This was the old way of doing things, and the London Police Service has made huge advances since the blanket approach.

The new system is based on a risk assessment. This involves the records screening operator reading the entire occurrence and seeing who was involved, analyzing the behaviour, the person’s actions, focusing on who was affected and then, depending on the type of position the applicant is applying for, making a decision based on whether there is concern that the person would harm someone else. For example, says Sherry, ‘an applicant may have a history of depression where they have felt like hurting themselves and went voluntarily to the hospital escorted by the police. Their behaviour indicated harm to oneself and not to anyone else. We do not want to penalize those who were seeking help. In this instance, there is no information of concern.’

Results of a police check from the London Police Service never reveal the nature of the incident, only whether the applicant does or does not have a local London criminal record, a record in the national repository, or has information of concern. If there is information of concern, then an applicant may schedule a meeting to discuss what the concern is about. If the applicant chooses, they may also have someone from the agency be present to hear and discuss what the London Police Service’s concerns are. Sherry stresses that ‘it is important for people to understand that the details of a police records check and vulnerable position screening are never released to an agency unless the applicant consents. If an actual copy is required, the applicant must make an application pursuant to the Municipal Freedom of Information and Protection of Privacy Act for a copy of the report so they themselves may share the information with the agency.’

Before implementing their process, the London Police Service conducted information sessions with volunteer agencies and invited feedback from other stakeholders. In October 2006, they will be conducting an evaluation of their new system and look forward to receiving feedback from both agencies and applicants involved.

Although the London Police Service has adopted a new system which is fair and non-discriminatory for both applicants and agencies, this new system is only applicable in the London region. A consistent, province-wide solution is required.

David Simpson, acting director of the Psychiatric Patient Advocate Office, says that ‘since 2002 the PPAO has been receiving complaints from clients across the province about the devastating impact of the release of information regarding non-criminal contact with the police for mental health reasons as part of the police reference check process. Many police departments believe that they have a responsibility to protect the public interest and maintain public safety, but the police do not seem to be concerned about the harmful consequences of doing so. For some clients, it has resulted in them having to abandon opportunities that would have allowed them to participate fully in their communities as responsible citizens.’

The PPAO believes that this practice discriminates against persons with mental illness. It brought this concern to the attention of the Ontario Human Rights Commission and is working with a group of agencies and consumer-survivor organizations to effect systemic change for the benefit of all individuals with mental illness.

‘Where do you start?’ asks Theresa, who now serves as chair of the Ontario Association of Patient Councils. The council is an advocacy organization that works to improve the quality of care for mental health consumers, both in hospital and in the community. ‘Who do you address it with? Each city has its own by-laws, making it very difficult. We at the Ontario Association of Patient Councils are working with others to address this issue. We’ve written letters to individual police departments, MPPs, and the premier, but so far no one has stepped forward to be a champion of the issue.’

Nicole Zahradnik is a community mental health analyst with CMHA Ontario.


POLICE RECORD CHECKS

Forms to request a police record check are available from the local police service. Individual applicants must submit the form in person at their local police station to have the police record check completed. If the application is submitted by the potential employer on behalf of the applicant, the person may not need to visit the station, depending on the police agreement with the employer.

Fees for the screening process vary among police departments, but range approximately from 15 to 60 dollars. Fees are payable at the time of submitting the application. Some volunteer agencies have service agreements with their local police agency which cover the cost. Photo identification is also required and must provide proof of residency.

Processing time varies, but on average it takes seven business days. Results from the check may be returned to the applicant or to the agency, depending upon the police agency’s regulations and signed authorization from the applicant. Read the section on ‘consent to disclosure of personal information’ to verify where the results will be sent.

How do I view and correct information in my police record?

The formal procedure involves making an application under the Municipal Freedom of Information and Protection of Privacy Act to view your police records. If you feel that the information contained is inaccurate, then you may make another application requesting to correct the information.

Can the response ‘does have information of concern’ be altered?

In London, you may write a letter to the London Police Service to appeal the information with supporting documentation, such as reference letters. The London Police Service will then review the initial records and may interview the investigating officer. Based on the information available, they will either overturn the original decision or support it. The process for other police departments may differ.


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