Those who first come into contact with the criminal justice system often want to know – will I end up having a criminal record? The typical answer has been that you will only have a criminal record if you are convicted of a criminal offence.
However, that answer and the definition of a "criminal record" becomes unclear when considering how police and other documents are handled in cases where there is no criminal conviction. People with cases where police did not lay charges, where charges were withdrawn or where a court dismissed charges could still have police records out there that contain negative allegations or information. Depending on the police service involved, these records could be accessed in a variety of scenarios, including cases where people are applying for work.
A couple of years ago, the Ontario government seemed to have a solution. The Police Records Check Reform Act was introduced and passed unanimously by the Ontario legislature to ensure that individuals with non-conviction records will not have those records shared with the public and will not have them disclosed unless there are exceptional circumstances.
The Police Records Check Reform Act was an attempt to create a standard framework regarding how police background checks are conducted. This new legislation outlines three types of record checks. There is a "Criminal record check" and "Criminal record and judicial matters check" as well as the more comprehensive "Vulnerable sector check", where non-conviction information can be disclosed only when certain criteria are fulfilled. The Act also requires the consent of the individual or subject being checked in order for the record request to proceed.
Despite the Act being given Royal Assent in December of 2015, it still has not become law.
Unfortunately, since it has not yet been enacted, those who have had charges withdrawn can still be at risk when it comes to employment, education, traveling, and volunteering, among other opportunities. The Ministry of Community Safety and Correctional Services has said that it has not become law yet because they are "still designing the regulations." While they are continuing to design the regulations, a number of Ontarians have become victims of the current situation.
In a recent article by The Toronto Star, several examples were highlighted where information in non-conviction cases was disclosed resulting in negative consequences for those involved. A woman was on track to become an RCMP officer when a record check pulled up "three unproven allegations". She claimed to have not known anything about these allegations and does not know if it was because of mistaken identity, but it drastically changed her life. The other, involved a man that was charged with assaulting his wife. He denied the allegations made by his wife, who suffered from dementia. The Crown did not proceed with the matter and the man was not convicted. However information about the charge remained on his record and was subsequently used to deny him entry to visit his sick daughter in hospital.
The above are examples of how under the current state of the law, people with non-conviction records have been treated as if they have been convicted of a crime. For those who have not been charged or those who have had those charges withdrawn, it seems that there are other records that could show up in a criminal background check. This includes records such as whether the individual was part of an investigation, whether the individual was ever a witness or victim to a crime as well as any complaints or allegations that have been made (by or about) the individual.
Disclosing police records of those who have not been charged or who have had their charges withdrawn or dismissed runs against the presumption of innocence. Despite no finding of guilt against them, these individuals can end up losing out on employment opportunities or can otherwise have their freedom restricted (IE. to enter hospitals or cross borders). It also appears they are afforded little opportunity to clear their name, as there is no proceeding within which they can defend themselves.
The Police Records Check Reform Act appears to be a possible answer to ensure this "innocent" segment of the population is protected from the disclosure of information that should be private. However, we will not know for certain until the Act becomes law and the regulations are enacted. A question still remains as to whether the regulations will adequately protect such non-conviction information. Unfortunately, for those who have already had sensitive and private information improperly disclosed – the damage appears to have already been done.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.