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Re: OACP’s Draft Guideline for Police Record Checks

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March 10, 2011

Susan Cardwell, Co-Chair
Law Enforcement and Records [Managers] Network LEARN
Ontario Association of Chiefs of Police OACP
40 College Street, Suite 605
Toronto ON M5G 2J3

Dear Ms. Cardwell,

Thank you for your two recent presentations held January 28 and February 25, 2011 to the Ontario Human Rights Commission (OHRC), members of the Mental Health Police Record Checks Coalition (PRCC) and other organizations where you gave an overview of the OACP’s Draft Guideline for Police Record Checks.

The OHRC appreciates the difficult balance that the Draft Guideline is attempting to strike between community safety, privacy and human rights. This involves protecting the health and safety of vulnerable individuals, including children, persons with disabilities and seniors who receive services from employees and volunteers working in those positions. It also means maximizing confidentiality and avoiding adverse impacts on persons with mental health disabilities that might result from the release of personal health information on a police record check for vulnerable sector job screening.

The Draft Guideline reflects significant progress made during discussions over the past year and sets out a number of provisions towards balancing these interests:

  • Organizations should have a bona fide requirement in place for the particular position before requesting any level of police record check (criminal record check, police information check, or vulnerable sector check) and only should make a request through the applicant after a conditional offer of employment or volunteer work
  • Before releasing non-criminal information under a police information check or vulnerable sector check, police should exercise discretion and examine the record against disclosure criteria set out in the Guideline. This would include whether the applicant’s behaviour involved violence, threat or harm to others or self, weapons, force, etc. and how long ago the incident took place. The Draft Guideline should clarify this to mean that an incident recorded as a mental health contact or apprehension should not be released unless these factors were clearly involved
  • Disclosed records should not describe whether an incident involved mental illness or an attempt or threat of suicide. The Draft Guideline should clearly state that no information about a person’s disability, or any other ground under the Human Rights Code including related descriptors, should appear on a disclosed record
  • Non-criminal incidents should be suppressed after five years unless a pattern persists
  • Results of a police record check should be returned to the applicant and not the requesting organization
  • Police services should offer applicants a “reconsideration” or appeal process to seek suppression of incidents that are no longer of concern for community safety based on, for example, an applicant’s age at the time, or documentation of current medical or rehabilitative status, etc.

The OHRC, members of the PRCC and others have raised other issues that remain unaddressed. Some are outside the scope of the OHRC’s mandate, such as restrictions on disclosure of records under the Canada’s Youth Criminal Justice Act. Other issues may be beyond the scope of the LEARN subcommittee’s current mandate but are equally important and include:

  • Police perception, practice and training on how incidents involving threats or violence and incidents involving mental health are recorded in police databases
  • Whether empirical research exists to warrant disclosure of suicide attempts as a predictor of harm to others
  • Is current policy and practice for carrying out apprehensions under the Mental Health Act appropriate? Is current policy and practice appropriate for pressing charges in circumstances involving threats or violence? Is it consistent with current diversion program objectives? For example, is pre-charge diversion ever appropriate for situations involving violence or other serious violations? Should it matter whether a mental illness triggered the incident?
  • Adverse effect of police record checks on pre or post charge diversion, rehabilitation and community reintegration programs
  • Adverse effect of police record checks on other groups protected by human rights law. For example, photo identification requirements that conflict with applicants’ religious beliefs or racial profiling that leads to disproportional contact with police.

A number of recommendations have come forward that could help strengthen the Guideline including:

  • Organizations should declare in writing that they have a bona fide requirement for the particular level of police record check
  • Rather than automatically disclosing a single incident of attempted suicide that occurred within one year or multiple incidents within five years, police should consider, as part of their exercise of discretion under the Guideline when conducting a Police Information Check or Vulnerable Sector Check, whether a suicide attempt or even threat of suicide did or might have put others at risk
  • To assist police in the exercise of discretion when conducting a Police Information Check or Vulnerable Sector Check, provide examples of mental health related incidents that may or may not be disclosed
  • Clarify that an incident disclosed as a conviction, or suppressed because of a conditional or absolute discharge or pardon, in accordance with the Criminal Records Act, should not appear again or as “other contact with police” under a Police Information Check or a Police Vulnerable Sector Check
  • Set out more detailed reconsideration criteria and include an outside civilian or board member on the review panel. For example, reviews should focus on the prognosis rather than the diagnosis of any medical condition in accordance with human rights law and policy
  • Develop an accountability mechanism to encourage police service boards to adopt and comply with the Guideline
  • Implement and promote the Guideline through public communication, public education and training, in collaboration with government, police and community organizations such as the OHRC, the Ontario Police College and members of the PRCC. In particular, promote public awareness of the reconsideration mechanism so that individuals might seek suppression of incidents prior to applying for vulnerable sector positions
  • Promote data collection to measure the impact of the new Guideline and to help improve it in the future.

While a number of stakeholders support the progress and recommendations identified above, some continue to take a primary position calling for criminal records checks only, with no release of any other incidents involving mental illness, because they believe police are always obligated to press charges when violence or threat to others is involved. The OHRC believes there are a balance of interests and rights to consider including those of the vulnerable individuals served by positions that undergo police record checks.

Ideally, the OACP would release a draft guideline for public consultation and broaden the scope of the initiative to examine the outstanding issues above including what the appropriate policy and practice is for pressing charges or for recording and categorizing into police databases incidents involving violence or threat of harm and incidents involving mental health apprehensions or related contacts. This is important to avoid violating the rights of individuals with past or ongoing mental illness when disclosing information on police record checks because such individuals typically pose no more risk to community safety than others in the general population.

At the same time, the OHRC recognizes it is time to move forward with the gains made to date. Police record check policies and practices remain inconsistent across the province. Police forces and vulnerable sector agencies are unsure of their responsibilities under criminal justice, privacy and human rights law. Applicants are unsure of their rights and how best to enforce them. “Mental health” labels continue to be an irrational trigger and descriptor in police record checks rather than focusing on behaviour, regardless of disability, that would cause legitimate concern for working with vulnerable people. In the absence of government legislation or regulation and definitive case law, many are looking for the consistent direction and benefit that an OACP guideline for police record checks could provide.

As the OACP LEARN subcommittee has stated, the new Guideline represents the beginning of progress, not the final word. For this reason, and for all the outstanding concerns above, the OACP should monitor and evaluate its effectiveness, including data collection and stakeholder feedback, and revise the Guideline at regular intervals. Individuals can raise issues and concerns with local police through the Guideline’s reconsideration process. Individuals and groups can also raise concerns through other bodies such as the Office of the Independent Police Review Director, the Office of the Information and Privacy Commissioner, the Human Rights Legal Support Centre and the Human Rights Tribunal of Ontario. These checks and balances are there to uphold the interests of community safety, privacy and human rights.

The OHRC will continue to monitor this important initiative and we very much appreciate the opportunity to continue working with the OACP.

Nancy Austin
Executive Director

Copy Ryan Fritsch, Legal Counsel, Psychiatric Patient Advocate Office and Co-Chair, Police Record Check Coalition (PRCC)
Uppala Chandrasekera, Planning and Policy Analyst, CMHA Ontario and PRCC Co-Chair
Theresa Claxton, Ontario Association of Patient Councils and PRCC Co-Chair Jane Letton, Counsel, Ryder Wright Blair & Holmes, LLP and PRCC Co-Chair