question of whether there should be a right to be forgotten.
Should, for example, an indiscretion captured in a photo and shared
via social media be purged?
The CCLA notes that most people who interact with police will
never be convicted of a crime. These people may be victims of
crime, be witnesses, or be targets of an investigation or a
"person of interest". In some cases, a person is simply
has an undiagnosed or untreated mental health need and law
enforcement officers are first responders. Records of these
interactions may be created in each of these cases. In addition, of
course, records will be created in situations where the police lay
charges that are subsequently withdrawn or individuals are
acquitted of an offence.
In the case of adults, these varied "non-conviction"
records are not subject to legal requirements for destruction. CCLA
comments that Criminal Records Act provides for removal of
records of absolute and conditional discharges from RCMP databases
within relatively short time frames. However, there is no
requirement with respect to other types of non-conviction records.
Moreover, CCLA concludes in its Alberta investigation that records
of absolute and conditional discharges of adults as well as other
non-conviction records of adults may continue to be maintained in
provincial databases for lengthy periods of time and possibly
indefinitely. (There are greater restrictions on the retention of
youth criminal records.)
The CCLA is calling for reform given the increasing use of
criminal background checks in employment. The CCLA is concerned
that these records may be misleading without sufficient context and
be unfair to the subject of the records who may not be in a
position to refuse to disclose those records. To address
these concerns, the CCLA has outlined seven recommendations which
are reproduced below:
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created; i.e., immediately after the charge is dismissed, withdrawn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
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
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.
In the meantime, employers should be cautious in their use
of background checks to ensure that they are adhering to their
legal obligations. For more information regarding the law
related to the use of background checks in employment, readers
might consider checking out "
The HR Manager's Guide to Background Checks and Pre-Employment
Testing" authored by Adrian Miedema (FMC lawyer) and
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A discussion on a recent decision of the Alberta Office of the Information and Privacy Commissioner in which an adjudicator emphasizes the narrow scope of personal information that can be considered reasonable to collect, use, and disclose for the purpose of providing background checks.
Canada’s Federal Privacy Commissioner Jennifer Stoddart today released a position paper which offers a roadmap for modernizing Canada’s federal private-sector privacy law, Personal Information Protection and Electronic Documents Act (PIPEDA), so that it more effectively tackles current and future privacy issues.