‘Beyond McCarthyism’: Outrage follows Star probe of police record checks that reveal meritless allegations

Disclosing unproven allegations, mental health incidents and surveillance notes on Canadians not convicted of a crime derails lives, careers and volunteerism.

Abby Deshman, a director with the Canadian Civil Liberties Association, says legislative reform is needed to protect innocent Canadians from unfair disclosure of police records.

Hundreds of Ontarians lashed out Saturday against the routine disclosure of unproven allegations, mental health incidents and secret surveillance notes in police background checks.

Those whose lives and careers have been ruined by having so-called non-conviction records handed to prospective employers were outraged, as well as lawyers who see such cases every day, and volunteer organizations that wrestle with the implications.

Together, they formed a consensus that legislative reform is needed.

“This is a total repudiation of the presumption of innocence, a gross distortion of the right to privacy, and demonstrates a mindset that the police can blackball anyone they choose,” said John Struthers, a veteran Toronto criminal lawyer and provincial director of the Criminal Lawyers’ Association.

“It is beyond McCarthyism, as the victims don’t even get any opportunity to defend themselves … This issue is a huge concern.”

The public outrage — including more than 150 messages posted on thestar.com and nearly another 100 emails and phone calls — came in response to a Saturday Star investigation. It found that hundreds of thousands of Canadians never found guilty of a crime are vulnerable to having their future derailed by disclosure of non-conviction records, such as withdrawn charges, mental health incidents and routine contacts with police.

The Canadian Civil Liberties Association (CCLA) and the John Howard Society of Ontario also issued reports on the issue Saturday, and wrote a joint letter to the four provincial parties seeking political response on the issue.

The CCLA also launched an online petition seeking to mobilize support to end the disclosure of non-conviction records and establish a centralized process for the most sensitive screening checks — those involving people applying to work with vulnerable Canadians.

Currently, there are no firm rules, which leaves decisions about what is disclosed to police forces across the province.

The Star asked the three leading provincial party leaders on the election trail whether they would introduce legislation prohibiting the release of non-conviction information.

While Liberal Leader Kathleen Wynne was unavailable for an interview, the party issued a statement to the Star saying the reports from the CCLA and John Howard Society “will help us to strike the right balance between public safety and civil liberties … If we are re-elected we will carefully review these recommendations, and examine best practices in other jurisdictions to find the right approach for Ontario.”

Spokespeople for Progressive Conservative Leader Tim Hudak and NDP Leader Andrea Horwath said they were unavailable and provided no further comment.

The Star’s story detailed the impact of personal non-conviction disclosures in the lives of half a dozen Canadians who lost jobs, volunteer positions or university positions, or had trouble crossing the U.S. border despite never being found guilty of anything.

They represent far more.

John Pierce, a Toronto actor who contacted the Star in response to the story Saturday, says it all felt eerily familiar.

Last year, he says, he tried to file a complaint to police about being stalked online by a hacker.

“The officer starts telling me, ‘You’ve got a history of violence dating back to 2002,’” Pierce recalls.

He was referring to a decade-old record — which Pierce says he didn’t know existed — of an incident in which a businessman claimed Pierce pushed him in the heat of an argument. The police showed up. Pierce says he explained the situation. There was no arrest or charge, he says.

His complaint was never investigated, he says.

“I was shocked to learn that I was not convicted of anything but they have it listed on police records suggesting I was charged and convicted. This needs to be addressed.”

Vlad, a 48-year-old Ontario businessman (whose surname is being withheld) had struggled with depression since he was a teen. Last year, experiencing financial difficulties and a death in his family, he had too much to drink and required medical attention.

“The depression was simply too overwhelming,” he recalls.

Asked at the hospital whether he had thoughts of “self-harm,” he answered that he did.

“This honest answer may cause issues moving forward,” he says.

When he sought a police background check to volunteer at his child’s school, he was told to come in for fingerprinting.

“An explanation as to why was never given.”

Vlad decided against paying $45 for fingerprinting and further background checks.

“I felt the process (was) an invasion of my privacy, as I have not been convicted of any crime. I do not volunteer at the school.”

Stephanie Heyens, a Toronto criminal lawyer, has numerous clients in the same situation, including a man who was turned down for a job with the Toronto Transit Commission.

She says she’s currently working to launch a case before the divisional court to challenge the lack of a process for having these records destroyed.

“Because more and more employers are jumping on this (police check) bandwagon, we’re going to see more and more people affected,” she says. “This problem is accumulating to a pressure point.”

Online, Star readers railed about the disclosure of non-conviction records as being “Orwellian” and a form of “state persecution.”

“I recently called the police because I was the victim of an assault. Does that mean that I now have a police record?” one reader wondered.

Another wrote: “It took me 20 some years to figure out that background checks were destroying my life and my ability to work in my proper field of experience and earn a decent income.”

Of the more than half a million criminal court charges laid in the province last year, 43 per cent were eventually stayed or withdrawn, according to research by the John Howard Society of Ontario.

And that doesn’t include police contacts — such as 911 calls, police surveillance or “carding” — that have also been disclosed to employers, universities, governments and volunteer organizations, the Star has learned.

The reports released Saturday by the CCLA and and John Howard Society both criticize a lack of legislative protections for Canadians who have non-conviction regcords, arguing it undermines the presumption of innocence.

Together, they call for tighter control over the release of non-conviction records and say the information should be withheld, except when the disclosure would address a significant public safety threat.

“Throughout our consultations, all stakeholders we have spoken with — civil society actors, police services, volunteer associations and service providers — have strongly supported the need for clear legislative limits on what police services should release, as well as a centralized agency for vulnerable sector screening,” reads a joint letter sent to the Liberal, Conservative, NDP and Green parties, calling for reforms to address a problem they say affects as many as four million people in Ontario.

“We sincerely hope that this is an issue that you will immediately commit to addressing when a new government is formed.”

If you have stories to tell about the disclosure of non-conviction records, contact Robert Cribb at rcribb@thestar.ca