Withdrawn charges can stay on record, court rules

Scary stuff in the POLICE STATE of Ontario


Man says police check with false accusations ruined job prospects

Tracey Tyler
LEGAL AFFAIRS REPORTER

The stigma of being accused of a criminal offence is almost impossible to escape, a Mississauga man learned yesterday when Ontario's highest court ruled police could disseminate information about charges that were laid against him, but later withdrawn.

The man, a former group home operator in his 60s who has never been convicted of a crime, said his employment chances were ruined when Peel police disclosed that eight charges of sexual assault and sexual exploitation were laid against him in 2002 and later withdrawn by the Crown.

In a 3-0 decision yesterday, the Ontario Court of Appeal set aside an injunction issued by a Toronto trial judge two years ago, which restrained police from referring to the withdrawn charges when providing information for background checks conducted for the man's prospective employers.

The ruling has the potential to affect a large number of people. A one-day snapshot from a police database in 2005, obtained by the Star for its Crime and Punishment series last year, revealed the Canadian Police Information Centre had some 500,000 records for people without convictions. They included records for people who were acquitted as well as those whose charges were stayed or withdrawn.

Even if withdrawn charges included in reports from record checks were based on false allegations, a person applying for a job still has an opportunity to explain these circumstances to a would-be employer, said Justices Marc Rosenberg and Kathryn Feldman, who co-authored the court's decision.

But Clayton Ruby, one of the lawyers representing the former group-home operator, said the truth is that employers faced with two or more equally qualified job applicants will not hire the person who was once charged with a crime, even if they are entirely innocent.

"Essentially, it (the court's ruling) condemns people who have had charges withdrawn, innocent people, to second-class status on the employment market," Ruby said.

In an affidavit, his client said the charges were "false and without merit" and he described the group home as his sole source of income. When the charges were withdrawn in 2003, he agreed to enter into a peace bond that temporarily prohibited him from being in the company of anyone younger than 14.

The following year, he applied for work at other group homes and as a counsellor, was required to undergo police checks. He signed forms authorizing Toronto police to conduct a criminal records search, as well as a "vulnerable persons search" – which allowed the force to comb through national and local data banks. Peel police forwarded its information about the withdrawn charges to Toronto.

But in a decision last year, Superior Court Justice William Somers said disclosing information about withdrawn charges was not authorized by statute and seemed to be just a practice or custom, one that had "a basic unfairness" about it.

Although the man signed forms consenting to the search and disclosure of information, the forms didn't specify that withdrawn charges might be included in information and he may well have expected that to remain private, Somers said. The appeal court yesterday, however, accepted Peel police arguments that there were good reasons for believing the man knew information about the withdrawn charges could be disclosed.

After receiving the results of the criminal records search, the man was asked to consent to another search – the "vulnerable persons search" – that would have signalled that information other than a criminal record could be disseminated.

As well, the man kept applying for record checks after having been turned down for jobs. Even if he didn't initially know the withdrawn charges would be mentioned in the police reports, "he certainly knew once he received the reports and once he was turned down for the social work jobs he was applying for."

The Toronto Star