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National data base holds 420,000 never convicted

Saturday, May 24, 2014

Ann Cavoukian, Ontario's Privacy Commissioner, supports new laws or amendments to legislation that clearly instructs police forces on what they can release to employers, volunteer organizations and governments. (Matthew Sherwood for the Toronto Star)

Hundreds of thousands of people are listed in Canada’s national criminal records despite never having been convicted of a crime, a Torstar News Service analysis has found.

More than 420,000 people were listed in the RCMP’s Canadian Police Information Centre (CPIC) database as having no conviction in 2005, the most recent year for which Torstar has data.
Many of them are listed in the database for mental health issues.

For example, nearly 2,500 with no conviction registered had a notation for “attempt suicide.” Another 2,200 had a notation for “mental instability” with no conviction.

Experts say the CPIC figures remain generally consistent over time.

These — along with mental health incidents and police investigation notes contained in local police force computers — are routinely released on background checks, a continuing Torstar investigation has found.
“This issue is big and it’s getting bigger,” says Toronto criminal lawyer David Rose, who argued a key Ontario case on disclosure of non-conviction records in 2012. “There are no rules, no legislation and police are free to do what they want.”

Innocent victims of police disclosures, along with lawyers, academics, social justice advocates and privacy experts, are calling for legislation that would bring clarity to what information can and can’t be released by police in background checks.

“This ruins lives,” says Ann Cavoukian, Ontario’s Privacy Commissioner, who supports new laws or amendments to current legislation that clearly instructs police forces on what they can release to employers, volunteer organizations and governments.

“We need some concrete guidance on this that directs police on the essential need for discretion. Left to their own devices, they may or may not exercise discretion and based on what guidelines, we don’t know.”

Diane, whose full name is being withheld to protect her from retribution, is one of more than 200 Canadians who came forward this week to say their personal or professional lives have been ruined by police check disclosures even though they have never broken the law.

When she ended her relationship with a common-law spouse five years ago, he vowed revenge.

“Unknown to me at the time, he scratched his legs, arms and neck and then called the police to report that I assaulted him,” says the now 40-year-old.

She was arrested and charged based on the physical marks on her ex.

While the charges were withdrawn 11 months later, the risk it poses to her career as a counsellor continues.
After completing a two-year program at George Brown College, Diane was working as a counsellor in Toronto in October 2012 when she was asked to provide a so-called vulnerable sector police check — required for those working with vulnerable people — as a condition of her employment.

Her withdrawn assault charge involving her ex-spouse was there.

“Just when you think you put this behind you, it comes up again and people assume you’re guilty and have done something terribly wrong,” she says. “It was disbelief, shock and a lot of anger.”

York Region and Toronto police removed the charge four months later following her appeals.

“It took … many hours of anguish to finally convince the police department that I was not actually a threat to society and that my employment hinged on the fact that I had a clear record.”

It meant she was able to keep her job.

But Diane is now completing a Masters degree in counselling psychology and will be required to submit further police checks to work with the public.

“Is (the charge) going to remain suppressed? I don’t know. I’ve worked very hard for this degree and this could prevent me from going forward.”

There is no rational argument for retaining such non-conviction records, says Darryl Davies, a criminology professor and researcher at Carleton University.

“There should be no information about non-convicted people in CPIC. CPIC is supposed to be and should be and ought to be a Canadian police information database for the purposes of identifying your criminal history. You can’t have a criminal history unless you’ve been convicted under the Criminal Code of Canada, end of story … It is, to me, a stain on our justice system that we allow it to continue.”

In response to queries from Torstar, the three provincial parties committed little in the way of specific policy positions.

The provincial Tories declined repeated requests for comment.

The Liberals declined an interview, saying in a written statement that they will examine recommendations from the Canadian Civil Liberties Association and the John Howard Society of Ontario “to find the right approach for Ontario.”

Both agencies released reports last week calling on police to stop releasing non-conviction records and asking politicians to enact legislation around police check disclosures that protects privacy.

The NDP provided the strongest statement, although short on details.

“The presumption of innocence represents a fundamental pillar of our legal system and New Democrats are committed to protecting this important right,” said Jagmeet Singh, NDP critic to the attorney general. “An NDP government will work with Ontarians to bring forward the legislative changes that are needed to properly address these concerns.”

Ontarians seeking to volunteer their time, talents and wisdom have had their intentions snagged on allegations that were never proven.

When Rick Perreault tried to volunteer for the Children’s Aid Society in Sudbury four years ago, he had no concerns about providing the mandatory police records check.

He considered himself an upstanding and law-abiding citizen who had worked for the City of Sudbury before becoming a federal employee.

To his amazement, an incident 15 years earlier when he had disciplined his young son appeared.

The son, then 10, was acting up in the back seat of the car and teasing his two younger brothers while Perreault was driving.

“I reached behind me and lightly tapped him on the knee as I was driving down a very busy highway,” Perrault recalls. “About a week after that, two police officers showed up at my place of work and asked my manager if I would step outside.”

It seems someone driving in the car behind him had reported him to police.

He explained what happened to the officers, both fathers, who then apologized for the trouble. No charges. No convictions.

“I thought that was the end of it.”

Not so.

Perrault was refused a volunteer position with the CAS based on the incident.

“I was stunned when my application was refused,” says Perrault. “I was a business man with no criminal record. I felt when I volunteered I would be an asset to this organization based on my experience raising three boys, my entrepreneurial skills, my experience with municipal and federal governments … I will never volunteer for anything again.”

The most outrageous aspect of non-conviction disclosures is the re-victimization of the innocent, says Anne, 58, who asked that her last name not be published to protect her employment.

Only a few months after being married in 2003, she called police and fled to a woman’s shelter because of domestic abuse.

Today she herself has a police record despite never being found guilty of a crime.

Her then husband was arrested and charged with assault and threatening death. Shortly after, he called the arresting officer and filed a complaint against Anne for allegedly threatening him.

He was convicted of assault.

Police found his claims against Anne to be unfounded.

“The officer believed my husband wanted to get back at me (and) filed the complaints out of spite,” she says.

“I was told not to worry about it.”

But while her ex-husband holds the right of all Canadians to apply for a pardon and have his conviction records expunged, the unproven allegations against Anne remain on her record today despite her appeals for them to be removed.

When she applied years later to be a volunteer at a women’s shelter, she was shocked to discover she had a police record indicating she was “suspected” of uttering threats.

“Anybody can pick up the phone, dial 911, file a complaint against you and if it goes into the database, you’re stuck with it,” she says. “When I discovered that I had this label for who knows how long, I just couldn’t get my head around it. It boggles my mind. Who came up with this?”

Turned down by the shelter, she appealed to the officer who investigated the allegations against her and asked him to remove the information from her record.

“He stated he could not,” she says. “I would just have to explain to future employers the circumstances and hope they would believe me.”

Her appeal to the Crown Attorney’s Office also had no effect.

“I was told, ‘There’s nothing we can do, this is how government expects (police) to record every incident they are called upon,’” she says. “The convicted are protected. But these non-conviction record releases definitely violate my constitutional rights to be heard, to defend myself against these false records.”

Police forces from across the country feed the RCMP-administered database with charge and outcome data. This information can be accessed by police from in-car cruiser computers and is shared with police services and agencies.

It is also available to the FBI and other U.S. agencies, including border officials. A reciprocal agreement allows Canadian police and agencies to access American criminal records.

Torstar’s analysis of the data showed that of the 421,244 people listed in CPIC with non-conviction records, 266,036 are Canadian-born. Of those, 83,394 had notations for violence; 1,805 have a notation for suicide attempt; and 1,617 had a notation for mental instability.

Torstar asked the RCMP this week for updated figures. None were provided in time for this story.

The national Canadian criminal database data includes “information on charges, warrants, persons of interest, stolen property, vehicles, criminal records as well as critical public and officer safety information,” an RCMP spokesperson said in response to Torstar questions.

Also included in the submitted data are “character” indicators police fill out whenever they feel an individual has a propensity for violence, is an escape risk, has experienced “mental instability” or has attempted suicide.
Cavoukian last month released the findings of her investigation into how and why a Toronto woman on her way to the Caribbean was turned away at the U.S. border over a “mental illness” episode from 2012.

The red flag was contained in CPIC data, Cavoukian determined. The Commissioner chastised police for routinely submitting such notations to the national database but her report gave no indication of the scope of those who may be affected by the data.

Police say such notations are necessary to ensure officer and public safety when responding to a call for service.

“If warranted and at the discretion of the investigating/attending police agency, public safety information related to individuals who are known to have mental health issues, including those who have attempted or threatened to commit suicide, is placed on CPIC to protect the individuals themselves, the general public and/or police officers who may come in contact with them, from possible harm,” Sergeant Greg Cox, an RCMP spokesperson, said in an email.

“The information allows police services to be aware of individuals that may be a danger to themselves or others and assists police in determining appropriate responses or actions to take relative to that individual.”
While that may be so, disclosing it to prospective employers, governments or volunteer organizations undermines the lives of law-abiding Canadians, says Anne, who now fears crossing the U.S. border.

“It’s unjust. And it’s a shaming of innocent people.”