CCLA report on presumption of guilt in non-conviction police records
On September 17, 2012, the Canadian Civil Liberties Association (CCLA) released a new report titled Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Background Checks. This report highlights the issues of discrimination, human rights, privacy and stigma that results from the disclosure of non-conviction records by police services.
The report states that although most police background records checks are used to inform employment and volunteer hiring decisions, they are also frequently performed in connection with adoptions, foster care applications and travel. The information that is revealed in police checks is not limited to criminal convictions. Rather, a wide range of “non-conviction” records can be disclosed including information about criminal charges that were withdrawn; cases where an individual was found not guilty or even complaints where charges were never laid; and non-criminal interactions such as experiences with police due to mental health needs.
The CCLA states that disclosing this type of sensitive information may undermine the presumption of innocence. For example, employers who receive negative police record checks may not fully understand the distinctions between the different types of police information in the police report, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. In the case of mental health records, this information may lead to illegal discrimination against those with mental disabilities.
According to CCLA, Canada has a limited legal framework governing the retention and release of non-conviction records, and local police services and the individual officers who are in charge of record checks have an enormous amount of discretion over the information that gets released. The CCLA recommends that mechanisms should be established that place tighter controls on the disclosure of non-conviction information to help reduce the privacy and human rights threats associated with the disclosure of non-conviction records without undermining legitimate public safety objectives.
The CCLA recommendations include:
- Non-conviction records should be regularly reviewed and destroyed in the overwhelming majority of cases.
- 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.)
- 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.
- 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.
- Where non-conviction records are retained, they should be disclosed only in relation to certain employment or volunteer positions.
- 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.
- Provincial human rights legislation should protect individuals from unwarranted discrimination on the basis of non-conviction disposition records.
To access the full report, visit ccla.org.