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					                                                            Court File No.: 65572/10


                                  ONTARIO
                         SUPERIOR COURT OF JUSTICE
                           CENTRAL EAST DIVISION

B E T W E E N:

                                     J.N.

                                                                          Applicant

                                    -and-

                 THE DURHAM REGIONAL POLICE SERVICES BOARD
                   and THE DURHAM REGIONAL POLICE SERVICE

                                                                       Respondents

                                    -and-


                    CANADIAN CIVIL LIBERTIES ASSOCIATION

                                                                         Intervener

______________________________________________________________________________

                       FACTUM OF THE INTERVENER,
                  CANADIAN CIVIL LIBERTIES ASSOCIATION
______________________________________________________________________________


                                                        NEUBERGER ROSE LLP
                                                        1392 Eglinton Avenue West
                                                           Toronto, ON. M6C 2E4

                                                      David Rose (LSUC # 33041D)
                                                                 Tel: 416-363-0761
                                                                Fax: 416-364-3271
                                                              rose@nrlawyers.com

                                                         Lawyers for the Intervener,
                                             the Canadian Civil Liberties Association
                             PART I – OVERVIEW AND FACTS


Overview


1.      This case concerns the nature of information that is maintained by a police service for the
purposes of a Criminal Information Request (“CIR” or “record check”) and the principles that
should govern decisions about the retention of this information. This Honourable Court must
determine whether criminal charges that do not result in convictions (a non-conviction
disposition record or “NCD record”) should routinely be included in criminal background checks
and, if not, what criteria and process police should employ in deciding when these records are to
be maintained.


2.      The Intervener, Canadian Civil Liberties Association (“CCLA”), submits that the absence
of clear criteria and a fair and transparent process for determining when NCD records are
maintained for background check purposes amounts to a breach of procedural fairness and a
violation of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). The
CCLA further submits that NCD records should be excluded from the database of information
available for a record check. At a minimum, where the police intend to maintain information
about an NCD record for the purposes of inclusion on a record check, notice should be given to
the individual charged prior to the disposition of that charge. There must be clear criteria used
by the police to justify inclusion and a fair and transparent process for challenging the police‟s
decision.


Facts


3.      The CCLA accepts the facts as set out in the records of both the Applicant and
Respondent. The CCLA takes no position on any contested facts at issue in this case.




                                                 1
                                      PART II – ISSUES AND ARGUMENT

4.          The CCLA will address the following issues:
            a.       Did the Respondents meet the requirements of procedural fairness in determining
                     whether the Applicant‟s NCD record could be retained for the purpose of
                     inclusion in a record check?

            b.       Did the Respondents violate the Applicant‟s rights under section 7 of the Charter
                     by including her NCD record on her record check?

            c.       What are the requirements for a procedurally fair and Charter-compliant approach
                     to non-conviction disposition records?

A)          The Respondents Failed to Meet the Requirements of Procedural Fairness


5.          The DRPS is empowered to respond to criminal information requests and to collect,
retain and disclose personal information in certain circumstances, as set out in the Municipal
Freedom of Information and Protection of Privacy Act, the Police Services Act and the
Regulations thereto. The CCLA acknowledges that police services may have valid reasons for
retaining records of all criminal charges that have been laid and the dispositions of those charges,
for their own record-keeping purposes or for other purposes. What is at issue in this Application,
however, is the issue of retention for the purposes of inclusion in a record check.


6.          In making determinations about what pieces of personal information will be available for
inclusion in a record check, the DRPS is engaged in exercising discretion conferred under a
statute. As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and
Immigration)1: “The fact that a decision is administrative and affects „the rights, privileges or
interests of an individual‟ is sufficient to trigger the application of the duty of fairness”.2


7.          The Supreme Court has recognized that the precise content of the duty of fairness is not
static, but rather varies depending on the particular context in which the issue arises.                   In



1
    *1999+ 2 S.C.R. 817 (“Baker”).
2
    Ibid., at para. 20, citing Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653.
                                                                2
particular, the Court has held that the following factors are relevant in determining the content of
the duty in a particular case:
                   i.    Nature of the decision being made and process followed in making it;
                  ii.    The nature of the statutory scheme and the terms of the statute pursuant to
                         which the body operates;
                 iii.    Importance of the decision to the individual(s) affected;
                 iv.     Legitimate expectations of the individual challenging the decision; and
                  v.     Choices of procedure made by the agency itself.3

8.         The Applicant‟s factum addresses these factors in significant detail. The CCLA agrees
with many of the deficiencies identified in paragraphs 33-54 of the Applicant‟s factum and
makes the following additional submissions with respect to the content of the duty of fairness
when a police service is considering the issue of inclusion of NCD records on a CIR are set out
below.


       (i) Nature of the Decision and Process Followed


9.         In this case, the nature of the decision at issue is what information should be available for
inclusion in a response to a criminal information request. The DRPS has a broad definition of
what is to be included in a CIR. Indeed, both the DRPS Directive and the Affidavit of Susan
Cardwell suggest that, by definition, CIRs are documents showing an individual‟s history of
charges, including convictions and non-conviction dispositions. The Directive and Affidavit also
suggest that CIRs requested by those working in the vulnerable sector will have their history of
criminal charges listed, regardless of how those charges were disposed of. It appears that the
DRPS routinely includes NCD records on record checks and that there is no policy providing for
the internal review of items before they are included on a CIR.


10.        There is no evidence before this Court of any criteria used by the DRPS to determine
when and whether NCD records should be included in record checks at first instance. As set out
above, inclusion is routine.             The Affidavit of Susan Cardwell describes criteria that are
apparently used by the appeal committee when an individual seeks to challenge the inclusion of a
particular notation on their record. These criteria are not articulated anywhere in the record other
3
    Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817.
                                                            3
than Ms. Cardwell‟s affidavit. They do not appear to be set out in any DRPS policy document
available to the public. If the Applicant had not sought relief from this Court, she would not
have been made aware of those criteria.


11.        The process followed by the DRPS is neither fair nor transparent. There is no evidence
that individuals receive any notice that their non-conviction disposition will be included on
future record checks. In the instant case, the Applicant‟s evidence is that she was surprised to
learn this was the case and only learned of this upon requesting and reviewing her CIR. Further,
while individuals have a right to challenge inclusions on a CIR and make submissions to the
DRPS, the absence of any clear criteria renders the right to make submissions meaningless.
Finally, even though the DRPS advised the Applicant that she could appeal their decision to the
Durham Regional Police Services Board (“DRPSB” or the “Board”), the Board advised her that
they lacked jurisdiction to review “operational matters”. Thus there is no meaningful right of
appeal from a decision of the DRPS regarding inclusion of NCD records on a record check.


       (ii) Nature of Statutory Scheme


12.        As set out in detail in the factum of the Applicant, the police have a statutory right to
collect, retain and disclose certain pieces of personal information pursuant to the Municipal
Freedom of Information and Protection of Privacy Act,4 the Police Services Act5 and regulations
thereto. In considering the question of retention of information for the purposes of inclusion on a
record check, it must be borne in mind that record checks exist largely for the purpose of
eventual disclosure to a third party. The CCLA therefore submits that the statutory provisions
allowing for disclosure must be considered by police services when deciding what information
will be retained for inclusion on a CIR.


13.        Section 41(1.2) of the Police Services Act allows for disclosure of personal information
pursuant to the Regulations but also notes that such disclosure shall be for one or more of the
listed purposes. Those purposes are:
4
    R.S.O. 1990, c. M.56.
5
    R.S.O. 1990, c. P.15.
                                                   4
                     a. Protection of the public
                     b. Protection of victims of crime
                     c. Keeping victims of crime informed of the law enforcement, judicial or
                        correctional processes relevant to the crime that affected them
                     d. Law enforcement
                     e. Correctional purposes
                     f. Administration of justice
                     g. Enforcement of and compliance with any federal or provincial Act, regulation
                        or government program
                     h. Keeping the public informed of the law enforcement, judicial or correctional
                        processes respecting any individual

14.        In developing a policy around the inclusion of charges on record checks, these purposes
of disclosure must play a dominant role. In other words, the DRPS must justify the inclusion of
NCD records on record checks with reference to one or more of the purposes listed above. A
policy of routine inclusion is not justified by virtue of these purposes.


15.        The CCLA notes that the Ontario Court of Appeal in Tadros v. Peel Regional Police
           6
Service considered disclosure of information to another police force and alleged disclosure to
other third parties. The Court did not consider the applicable policies and guidelines for the
respondent police force‟s treatment of NCD records. In the circumstances of that case, the
Court‟s decision was based on its determination that Mr. Tadros had consented to disclosure of
his records. The decision is therefore distinguishable on a number of grounds.


       (iii)Importance of the Decision


16.        The importance of the decision to the individual affected in this case militates in favour
of strong procedural protections and clear criteria and guidelines for the application of a CIR
policy. The presence of a criminal charge on an individual‟s permanent record is a very serious
matter and may have significant consequences on their future prospects. Rightly or wrongly,
criminal charges, regardless of the disposition, carry a harsh stigma and may place real barriers
on career advancement and on one‟s ability to contribute meaningfully to society through
volunteer work.

6
    (2009), 97 O.R. (3d) 212 (Ont. C.A.).
                                                    5
17.      The inclusion of a non-conviction disposition on an individual‟s criminal record does
significant harm to one‟s reputation. As set out in section B below, the CCLA submits that this
interest has constitutional protection.


      (iv) Legitimate Expectations


18.      The Applicant and others in her situation may legitimately expect that a criminal charge
that was withdrawn by the Crown or did not result in a conviction would not be included in a
criminal information request. The inclusion of NCD records on CIR forms will come as a
surprise to the thousands of individuals who are charged but not convicted.


19.      The Applicant was charged with one count of simple assault on March 6, 2007. In the
years 2006-2007, 40,957 adults were charged with level 1 assault in Canada. Of those charged,
21,837 individuals, or 53%, were found guilty.7 Thus, over this period, 19,120 individuals
received non-conviction dispositions. This includes those found not guilty as well as those
whose charges were simply withdrawn. Findings of guilt were even less common in this period
for assault with a weapon or causing bodily harm. For that type of assault, of the 14,123 cases in
2006/2007, 7,091 or 50.2% resulted in a finding of guilt.8 The number of individuals that
received non-conviction dispositions as a result of criminal charges other than these two kinds of
offences would, indeed, be much greater.


20.      Overall, in 2008/2009 there were 392,907 cases against adults in criminal courts across
Canada.9 On average, 29.3% of these cases (114,978 cases) resulted in the case being stayed or



7
  Statistics Canada, Trends in police-reported serious assault (October 2009, Vol. 29, no. 4: Component of Statistics
Canada catalogue no. 85-002-X), Table 4 at p. 15, available online at: http://www.statcan.gc.ca/pub/85-002-
x/2009004/article/10930-eng.pdf.
8
  Ibid.
9
  Statistics Canada, Juristat: Adult criminal court statistics, 2008/2009 (Summer 2010, Vol. 30, no. 2: Component of
Statistics Canada catalogue no. 85-002X), Table 3 at p. 28, available online at: http://www.statcan.gc.ca/pub/85-
002-x/2010002/article/11293-eng.pdf

                                                          6
charges withdrawn, while 3.2% of cases (12,446 cases) resulted in acquittals.10 Thus, over
125,000 cases in 2008/2009 resulted in non-conviction dispositions.


21.         When these individuals apply for a job or volunteer position that requires a criminal
background check, many will learn for the first time that charges remain on their record. Under
the DRPS‟ routine inclusion policy, this will be the case regardless of whether charges were
withdrawn due to the absence of sufficient evidence, a recanting witness or victim, the
conviction of another individual for the alleged crime, or because the charge had been
mistakenly laid. Significantly, those convicted of criminal offences may apply to the National
Parole Board for a pardon and have the record of their criminal conviction segregated and
protected from disclosure.11 Paradoxically, many individuals with non-conviction dispositions
have no similar recourse.


       (v) Agency’s Choice of Procedures


22.         As set out above, the DRPS has chosen to routinely include NCD records on record
checks. The DRPS has no policy of giving notice to people affected nor does it have publicly
available criteria to assist people in challenging this inclusion. It does not have any criteria to
determine whether to maintain the inclusion or not. The Applicant received no reasons from the
DRPS as to why her challenge to the inclusion of the records was denied and did not have access
to a meaningful right of appeal.


23.         The Respondents‟ evidence suggests that other police services do not have standard
practices or clearly defined procedures with respect to NCD records. The CCLA respectfully
submits that the failure of other police services to develop appropriate policies and criteria for
the retention of information for CIRs would not excuse the actions of the DRPS in this case. In
any event, the CCLA notes that some police services do have policies addressing this issue.




10
     Ibid.
11
     Criminal Records Act, R.S. 1985, c. C-47, ss. 3-6.
                                                          7
24.        For example, the Toronto Police Service (“TPS”) has a policy with respect to destruction
of fingerprints, photographs and records of disposition that is publicly available through its
website.12 That policy provides intelligible criteria for the destruction of NCD records and lays
out an Appeal Process for when an applicant‟s request for destruction of their NCD records is
denied. Although, in the CCLA‟s submission, the TPS policy does not go far enough in
protecting the rights of those who have received non-conviction dispositions, it does demonstrate
that some police services have attempted to develop guidelines and criteria for the inclusion of
NCD records and to put in place fair and transparent processes for challenges to decisions made
by the police in respect of these records.


       (vi) Conclusion on the Duty of Fairness


25.        In the CCLA‟s submission, the factors outlined above demonstrate the need for clear and
consistent criteria in determining when NCD records will be included in response to a CIR and a
fair and transparent process for challenging decisions made by a police service. Section C of this
factum will address some of the options that the DRPS and other police services may consider in
developing a scheme consistent with these requirements.


B)         The Respondents Breached the Applicant’s Rights under Section 7 of the Charter


26.        The CCLA submits that a police service‟s decision to include NCD records on a record
check implicates Charter rights on a number of levels. First, police exercise powers conferred
on them by statute and there is a general requirement that statutes be interpreted in light of the
Charter and that the exercise of statutory discretion is subject to the Charter and its values.
Second, as described at paragraphs 55-82 of the Applicant‟s factum, there is considerable
overlap between the common law duty of fairness and the principles of fundamental justice
under s. 7 of the Charter. Finally, the CCLA submits that the Applicant‟s section 7 Charter
rights were directly impacted by the Respondent‟s treatment of her request that the withdrawn
criminal charge be removed from her CIR form.

12
     http://www.torontopolice.on.ca/publications/files/forms/fingerprint_destruction.pdf.
                                                          8
      (i) Impact on the Right to Security of the Person


27.      Section 7 protects the right to “life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice.” The
Supreme Court has recognized that serious state-imposed psychological stress constitutes a
breach of the right to security of person protected under section 7 of the Charter.13 The Court has
held that the psychological stress need not be a result of criminal proceedings, but may also
include stress arising in a child protection context14 and from administrative and civil
proceedings.15


28.      In order to establish a claim that the right to security of the person has been breached as a
result of serious state-imposed psychological stress, it must be shown that the psychological
prejudice is serious and that the harm complained of is state-imposed (i.e. resulting from the
actions of the state or having a sufficient causal connection to state action).16


Serious Psychological Prejudice


29.      In Blencoe, the Supreme Court acknowledged that serious psychological stress and state
interference with psychological integrity can implicate the security of person right protected by
section 7.17 Canvassing past decisions, the Court recognized the kind of personal interests
deemed fundamentally important to individual autonomy, including “a woman‟s choice to
terminate her pregnancy, an individual‟s decision to terminate his or her life, the right to raise
one‟s children, and the ability of sexual assault victims to seek therapy without fear of their
private records being disclosed.”18 However, the Court did not suggest that other personal
interests were excluded from the scope of section 7 or that prior decisions established an
exhaustive list. Indeed, although the Court found that the delay in Mr. Blencoe‟s human rights


13
   R. v. Morgentaler, [1988] 1 S.C.R. 30 at para. 25.
14
   New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at para. 58.
15
   Blencoe v. B.C. (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 83.
16
   Ibid., at para. 57.
17
   Ibid., at para. 80.
18
   Ibid., at para. 86.
                                                          9
proceeding did not give rise to a security of the person concern, the Court left open the
possibility that, in other circumstances, delays in the human rights context might violate section
7.19


30.      The Court has also recognized that, while dignity and personal reputation are not free-
standing constitutional rights, these concepts underlie all rights set out in the Charter. In the
context of the civil tort of defamation, the Court has recognized that:
         …reputation is the „fundamental foundation on which people are able to interact with
         each other in social environments‟. At the same time, it serves the equally or perhaps
         more fundamentally important purpose of fostering our self-image and sense of self-
         worth.20

31.      Along similar lines, in R. v. Lucas21 the Supreme Court considered the constitutionality of
criminal libel laws and ruled that the protection of reputation is a pressing and substantial
objective in Canadian society. Cory J. stated that “[t]he protection of an individual‟s reputation
from willful and false attack recognizes both the innate dignity of the individual and the integral
link between reputation and the fruitful participation of an individual in Canadian society.”22


32.      In the context of criminal charges, it is well-established that notwithstanding that the
Charter guarantees that an accused has the right to be presumed innocent until proven guilty,23
there is a real stigma and genuine prejudice that attaches to pending criminal charges. This is
one of the bases for section 11(b) of the Charter, which requires that criminal trials be completed
in a reasonable time. As Justice Lamer noted in Mills v. The Queen,24 an 11(b) case:

         the concept of security of the person is not restricted to physical integrity; rather, it
         encompasses protection against „overlong subjection to the vexations and vicissitudes of
         a pending criminal accusation‟. These include stigmatization of the accused, loss of
         privacy, stress and anxiety resulting from a multitude of factors, including possible



19
   Ibid., at para. 98.
20
   Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 113, at para. 117.
21
   R. v. Lucas, [1998] 1 S.C.R. 439.
22
   Ibid., at para. 48.
23
   Charter, s. 11(d)
24
   Mills v. The Queen, [1986] 1 S.C.R. 863.
                                                           10
         disruption of family, social life and work, legal costs, uncertainty as to the outcome and
         sanction.25

33.      The stigma associated with criminal charges and criminal convictions is also recognized
and addressed by Canada‟s pardon regime. The Criminal Records Act26 establishes the pardon
regime which provides convicted offenders with an opportunity to be relieved from the stigma
associated with their criminal charges and to allow for their rehabilitation and re-integration into
Canadian society. Section 5 of the Criminal Records Act provides in part that a pardon is
evidence of the fact that “the conviction in respect of which the pardon is granted should no
longer reflect adversely on the applicant‟s character”.27 To not afford a similar opportunity to
those who are charged but not convicted flies in the face of both logic and fairness.


34.      Under the pardon regime, a convicted offender may, when certain requirements are met,
obtain a pardon and protect his/her conviction from disclosure in a CIR.28              Even where
vulnerable sector searches are required, the pardon regime provides that only certain pardoned
offences, contained in Schedule 2 to the Criminal Records Act, may be revealed in the context of
such a search.29 The offence with which the Applicant was charged – simple assault – is not
among those offences listed in Schedule 2. Thus, if she had been convicted of the charge, she
could eventually apply for a pardon and, if granted, would have a clean record. However,
because of the withdrawal of the charge and the DRPS‟s policy of routine inclusion, the
Applicant will be stigmatized and likely prejudiced by this charge indefinitely.


35.      In the instant case, the Applicant‟s dignity and personal reputation have been deeply
affected by the permanent and indefinite inclusion of a withdrawn charge on her criminal record.
The stigma of a criminal charge is powerful. The ongoing inclusion of such a charge on an
individual‟s record may cause them personal shame and humiliation as well as significant
difficulties if the information must be communicated to others for the purposes of employment or


25
   Ibid., at para. 145 (Lamer J. dissenting)
26
   Criminal Records Act, R.S.C. 1985, c. C-47.
27
   Ibid., s. 5(a)(ii).
28
   Ibid., ss. 3, 4, 5, and 6.
29
   Ibid., s. 6.3.
                                                 11
volunteer opportunities. Being haunted by a criminal charge despite the fact that an individual
was acquitted or the charge was formally withdrawn further impacts security of the person by
giving rise to significant psychological stress. The Applicant‟s evidence in this case speaks to
this point and further demonstrates the difficulties she has had in applying for gainful
employment and in supporting herself financially.


Psychological Stress is State-Imposed


36.    There is a strong causal connection between the state‟s actions in this case and the
psychological stress experienced by the Applicant. The Applicant was charged by the police, her
charge was subsequently withdrawn by the Crown, and the withdrawn charge was retained for
the purposes of her CIR and remains on her CIR by virtue of policies and decisions made by the
DRPS. The Durham Regional Police Service Board‟s refusal to consider her appeal is also state
action with a direct causal impact on the Applicant.


37.    It may be suggested that any prejudice suffered by the Applicant in this case is a result of
potential employers who view the withdrawn charge with suspicion and is therefore not the fault
of the police service that chooses to include the charge on a record check. This argument
misconstrues the reasons for record checks and the purposes for which they are obtained.
Employers may or may not appreciate the kinds of information that may be included on a record
check. It would be reasonable for a lay person to assume that all notations contained on a record
check are mandated by the Police Services Act and included in light of the statutory purposes of
disclosure listed above.


38.    The Ontario Court of Appeal, in Tadros, acknowledged that an individual who consents
to a record check for the purposes of employment may have no meaningful choice but to do so if
he/she wishes to have a chance at obtaining the job. While the Court recognized that this may be
unfair and result in an undue stigma attaching to job applicants, the Court held that a potential
employee may simply explain the circumstances surrounding a withdrawn charge to a proposed
employer. It is not difficult to understand why potential employees would be reluctant to do this.

                                                12
Moreover, since the decision in Tadros turned on the finding that the applicant had consented to
disclosure of his records (including the NCD record), the Court did not address whether the NCD
record was otherwise validly included on the CIR, or could be justified under one or more of the
purposes set out in s. 41(1.2) of the Police Services Act.


39.        In this case, the CCLA respectfully submits that the DRPS policy of routine inclusion of
NCD records on CIRs culminate as the proximate cause of the psychological stress experienced
by the Applicant. Thus, the Applicant‟s right to security of the person has been violated by the
state.


       (ii) Principles of Fundamental Justice


40.        In order to establish a breach of section 7 of the Charter, it must be demonstrated that the
alleged deprivation of life, liberty or security of the person was not in accordance with the
principles of fundamental justice. Those principles “are to be found in the basic tenets of our
legal system”30 and are informed by Canadian experience and jurisprudence. They include fair
administrative procedures.31


41.        The Respondents‟ failure to provide J.N. with fair administrative procedures has been
outlined above. Briefly, the deficiencies in procedure include:


                    a. The absence of notice that a withdrawn charge would be retained by the
                       DRPS for the purposes of inclusion on a record check;
                    b. The routine inclusion of NCD records on record checks;
                    c. The absence of publicly available criteria employed by the DRPS when
                       determining what information will be included in a record check;
                    d. The absence of publicly available criteria employed by the DRPS when
                       considering a challenge to the inclusion of a notation on a record check;
                    e. The failure to provide reasons for the decision to refuse the Applicant‟s
                       request that her withdrawn charge be expunged from her record check;
                    f. The absence of a meaningful right of appeal to the Durham Regional Police
                       Services Board; and

30
     Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503
31
     See e.g. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177
                                                          13
                     g. The failure of the DRPSB to set out the basis for their contention that the
                        matter was beyond their jurisdiction.

C)          Requirements for a Fair and Charter-Compliant Approach to NCD Records


42.         The CCLA submits that, in order to comply with the Charter and meet the duty of
fairness NCD records should be routinely expunged or segregated from the databases of
information maintained by the police for the purposes of a record check. The default position
should be that this information is not available to police in preparing a response to a record
check.


43.         This approach recognizes that a non-conviction disposition is not a finding of guilt and
should not adversely impact on an individual‟s character.


44.         Alternatively, if this Court rejects the position that NCD records should be routinely
expunged, it is submitted that, at a minimum, the individual charged with the offence should be
notified that NCD records will be maintained for the potential inclusion on a CIR. Further, the
individual should be given an opportunity to request that the record be deleted. Where such a
request has been made, the CCLA submits that there should be a presumption in favour of
removal of the record from the database of information available for record checks.


45.         In R. v. Doré,32 the Ontario Court of Appeal considered the issue of retention of
fingerprints from an individual who was not convicted. The Court in Doré rejected the argument
that the police practice of retaining fingerprints from individuals who were not convicted
violated section 8 of the Charter. In coming to its decision, however, the Court of Appeal relied
heavily on the evidence that both the RCMP and the Metropolitan Toronto Police Force (the
forces implicated in the case) had a practice of destroying the fingerprints and photographs of
individuals who had been acquitted or whose charges had been withdrawn upon request. In the
Court‟s view, this practice was sufficiently protective of the privacy interests at stake.33


32
     (2002), 166 C.C.C. (3d) 225 (Ont. C.A.).
33
     Ibid., paras. 72-79.
                                                   14
46.         Although the questions at issue in Doré and in this Application are distinct, the Court of
Appeal‟s decision recognized some important principles that are relevant to the issues now
before this Court. For example, the Court in Doré recognized that the retention of fingerprints
and photographs by the police gives rise to the stigma associated with criminality in the absence
of a conviction. The Court stated:

            Linked to the inherent privacy interest one has in anything emanating from one‟s body, is
            the factor that the fingerprints are stored by the police because they were originally
            obtained under the Identification of Criminals Act. Therefore, the storage and use of the
            fingerprints is associated with the identification of the person as a criminal, when the
            person has not been convicted of the offence.34

47.         This factor was relevant in considering the privacy interests implicated by retention but is
also pertinent in examining the reputational interest that arises in this case.


48.         The Court of Appeal in Doré declined to find that the absence of notice of the retention
of fingerprints was fatal to the constitutionality of the scheme. However, this finding was based
on the fact that an individual who was charged, fingerprinted and photographed, would be aware
of the existence of these fingerprints and photographs. The CCLA submits that the question at
issue on this Application is distinguishable on this point. While those who are charged and have
their charges withdrawn will be aware of the disposition of their charges, few would be aware
that those charges might re-surface when a criminal record check is requested. The common
understanding of a criminal record check is that it discloses criminal convictions and, perhaps,
criminal charges that are still pending. In the circumstances of the variety of non-conviction
dispositions that exist, the CCLA submits that fairness requires that police services provide
notice to individuals when records of those dispositions may be revealed through a criminal
record check.


49.         The CCLA advocates for the routine exclusion of NCD records from record checks. In
exceptional circumstances, retention may be justified where there are reasonable grounds to
believe that the applicant will commit a “serious personal injury offence” as that term is defined


34
     Ibid., para. 54.
                                                     15
in s. 752 of the Criminal Code of Canada35 and where disclosure of the NCD record on a record
check would comport with one or more of the purposes listed in s. 41(1.2) of the Police Services
Act. In any event, retention must be time-limited so that an individual‟s historical interactions
with the police do not continue to haunt them for years.


50.     In cases where the police propose to retain NCD records on a record check, they must
bear the onus of demonstrating why inclusion is required. Further, there must be a fair and
transparent process to allow for challenges to decisions favouring inclusion. This process must
contain the following elements:


                 a. Publicly accessible criteria or guidelines employed by police forces in
                    determining when inclusion is required;

                 b. Reasons that demonstrate that the purpose served by inclusion is one set out in
                    s. 41(1.2) of the Police Services Act and that inclusion is a necessary and
                    proportionate means of achieving that purpose;

                 c. An opportunity for the applicant to make submissions about why inclusion is
                    inappropriate, not necessary or may result in prejudice to the individual that
                    would outweigh the public interest in inclusion; and

                 d. Access to an independent and meaningful appeal process.

51.     The CCLA urges this Court to recognize the manifest unfairness of continuing to
routinely include NCD records on record checks and to adopt an approach that provides
applicants with clear and consistent criteria and a fair and transparent procedure for addressing
this issue.




35
  Ontario’s Information and Privacy Commissioner suggested a blueprint for the handling of non-conviction
disposition records to the Toronto Police Services Board which includes this as one circumstance where retention
may be justified. The IPC’s blueprint, dated February 28, 2007, is available online at:
http://www.ipc.on.ca/images/Resources/2007-02-28-blueprint-mukherjee-tpsb.pdf

                                                       16
                                PART III – ORDER SOUGHT


52.    The CCLA takes no position on the disposition of this Application. The CCLA seeks no
costs and asks that no costs be awarded against it.


ALL OF WHICH IS RESPECTFULLY SUBMITTED
THIS 21st day of December, 2010


                                                      _____________________________________
                                                                                 David S. Rose
                                                                            Neuberger Rose LLP

                                                                       Counsel to the Intervener,
                                                             Canadian Civil Liberties Association




                                                17
                     APPENDIX “A” – AUTHORITIES TO BE CITED
Cases

Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817

Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643

Tadros v. Peel Regional Police Service, (2009), 97 O.R. (3d) 212 (Ont. C.A.)

R. v. Morgentaler, [1988] 1 S.C.R. 30

New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46

Blencoe v. B.C. (Human Rights Commission), [2000] 2 S.C.R. 307

Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 113

R. v. Lucas, [1998] 1 S.C.R. 439.

Mills v. The Queen, [1986] 1 S.C.R. 863

Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177

R. v. Doré, (2002), 166 C.C.C. (3d) 225 (Ont. C.A.).



Articles

Statistics Canada, Trends in police-reported serious assault (October 2009, Vol. 29, no. 4:
Component of Statistics Canada catalogue no. 85-002-X), Table 4 at p. 15, available online at:
http://www.statcan.gc.ca/pub/85-002-x/2009004/article/10930-eng.pdf.

Statistics Canada, Juristat: Adult criminal court statistics, 2008/2009 (Summer 2010, Vol. 30,
no. 2: Component of Statistics Canada catalogue no. 85-002X), Table 3 at p. 28, available online
at: http://www.statcan.gc.ca/pub/85-002-x/2010002/article/11293-eng.pdf

http://www.torontopolice.on.ca/publications/files/forms/fingerprint_destruction.pdf

Ontario‟s Information and Privacy Commissioner suggested a blueprint for the handling of non-
conviction disposition records to the Toronto Police Services Board which includes this as one
circumstance where retention may be justified. The IPC‟s blueprint, dated February 28, 2007, is
available online at: http://www.ipc.on.ca/images/Resources/2007-02-28-blueprint-mukherjee-
tpsb.pdf
                                               18
                    APPENDIX “B” – STATUTORY PROVISIONS


1.   Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56

2.   Police Services Act, R.S.O. 1990, c. P.15

3.   Disclosure of Personal Information Regulation, O. Reg 265/98

4.   Criminal Records Act, R.S. 1985, c. C-47




                                             19
1.     Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.
       M.56

PART II
PROTECTION OF INDIVIDUAL PRIVACY

Collection and Retention of Personal Information

Manner of collection

29. (1) An institution shall collect personal information only directly from the individual to
whom the information relates unless,

                                                …

(g) the information is collected for the purpose of law enforcement; or

                                                …

Disposal of personal information

30. (4) A head shall dispose of personal information under the control of the institution in
accordance with the regulations. R.S.O. 1990, c. M.56, s. 30.

Use and Disclosure of Personal Information

Use of personal information

31. An institution shall not use personal information in its custody or under its control except,

                                                …

(c) for a purpose for which the information may be disclosed to the institution under section 32
or under section 42 of the Freedom of Information and Protection of Privacy Act. R.S.O. 1990,
c. M.56, s. 31.

Where disclosure permitted

32. An institution shall not disclose personal information in its custody or under its control
except,

                                                …

 (b) if the person to whom the information relates has identified that information in particular and
consented to its disclosure;

                                                …
                                                 20
(e) for the purpose of complying with an Act of the Legislature or an Act of Parliament, an
agreement or arrangement under such an Act or a treaty;

(f) if disclosure is by a law enforcement institution,

(i) to a law enforcement agency in a foreign country under an arrangement, a written agreement
or treaty or legislative authority, or

(ii) to another law enforcement agency in Canada;

(g) if disclosure is to an institution or a law enforcement agency in Canada to aid an investigation
undertaken with a view to a law enforcement proceeding or from which a law enforcement
proceeding is likely to result;




                                                  21
2.     Police Services Act, R.S.O. 1990, c. P.15

PART IV
POLICE OFFICERS AND OTHER POLICE STAFF

Chief of Police

Power to disclose personal information

41(1.1) Despite any other Act, a chief of police, or a person designated by him or her for the
purpose of this subsection, may disclose personal information about an individual in accordance
with the regulations. 1997, c. 17, s. 9.

Purpose of disclosure

(1.2) Any disclosure made under subsection (1.1) shall be for one or more of the following
purposes:

1. Protection of the public.

2. Protection of victims of crime.

3. Keeping victims of crime informed of the law enforcement, judicial or correctional processes
relevant to the crime that affected them.

4. Law enforcement.

5. Correctional purposes.

6. Administration of justice.

7. Enforcement of and compliance with any federal or provincial Act, regulation or government
program.

8. Keeping the public informed of the law enforcement, judicial or correctional processes
respecting any individual. 1997, c. 17, s. 9.

Same

(1.3) Any disclosure made under subsection (1.1) shall be deemed to be in compliance with
clauses 42 (1) (e) of the Freedom of Information and Protection of Privacy Act and 32 (e) of the
Municipal Freedom of Information and Protection of Privacy Act. 1997, c. 17, s. 9; 2006, c. 34,
Sched. C, s. 27.



                                               22
3.     Disclosure of Personal Information Regulation, O. Reg 265/98

Police Services Act

ONTARIO REGULATION 265/98

DISCLOSURE OF PERSONAL INFORMATION

2. (1) A chief of police or his or her designate may disclose personal information about an
individual to any person if,

(a) the individual has been convicted or found guilty of an offence under the Criminal Code
(Canada), the Controlled Drugs and Substances Act (Canada) or any other federal or provincial
Act;

(b) the chief of police or his or her designate who would disclose the personal information
reasonably believes that the individual poses a significant risk of harm to other persons or
property; and

(c) the chief of police or his or her designate who would disclose the personal information
reasonably believes that the disclosure will reduce that risk. O. Reg. 265/98, s. 2 (1).

(2) If subsection (1) applies, the chief of police or his or her designate may disclose any personal
information about the individual that the chief of police or his or her designate reasonably
believes will reduce the risk posed by the individual. O. Reg. 265/98, s. 2 (2).

3. (1) A chief of police or his or her designate may disclose personal information, as described
in subsection (2), about an individual to any person if the individual has been charged with,
convicted or found guilty of an offence under the Criminal Code (Canada), the Controlled Drugs
and Substances Act (Canada) or any other federal or provincial Act. O. Reg. 265/98, s. 3 (1).

(2) If subsection (1) applies, the following information may be disclosed:

1. The individual‟s name, date of birth and address.

2. The offence described in subsection (1) with which he or she has been charged or of which he
or she has been convicted or found guilty and the sentence, if any, imposed for that offence.

3. The outcome of all significant judicial proceedings relevant to the offence described in
subsection (1).

4. The procedural stage of the criminal justice process to which the prosecution of the offence
described in subsection (1) has progressed and the physical status of the individual in that
process (for example, whether the individual is in custody, or the terms, if any, upon which he or
she has been released from custody).
                                                23
5. The date of the release or impending release of the individual from custody for the offence
described in subsection (1), including any release on parole or temporary absence. O. Reg.
265/98, s. 3 (2).

5. (1) A chief of police or his or her designate may disclose any personal information about an
individual if the individual is under investigation of, is charged with or is convicted or found
guilty of an offence under the Criminal Code (Canada), the Controlled Drugs and Substances
Act (Canada) or any other federal or provincial Act to,

(a) any police force in Canada;

(b) any correctional or parole authority in Canada; or

(c) any person or agency engaged in the protection of the public, the administration of justice or
the enforcement of or compliance with any federal or provincial Act, regulation or government
program. O. Reg. 265/98, s. 5 (1).

(2) Subsection (1) applies if the individual is under investigation of, is charged with or is
convicted or found guilty of an offence under the Criminal Code (Canada), the Controlled Drugs
and Substances Act (Canada) or any other federal or provincial Act and if the circumstances are
such that disclosure is required for the protection of the public, the administration of justice or
the enforcement of or compliance with any federal or provincial Act, regulation or government
program. O. Reg. 265/98, s. 5 (2).

(3) The procedures to be followed in disclosing personal information under this section to an
agency that is not engaged in the protection of the public or the administration of justice shall be
in accordance with a memorandum of understanding entered into between the chief of police and
the agency. O. Reg. 265/98, s. 5 (3).

6. In deciding whether or not to disclose personal information under this Regulation, the chief of
police or his or her designate shall consider the availability of resources and information, what is
reasonable in the circumstances of the case, what is consistent with the law and the public
interest and what is necessary to ensure that the resolution of criminal proceedings is not
delayed. O. Reg. 265/98, s. 6.




                                                 24
4.      Criminal Records Act, R.S. 1985, c. C-47

APPLICATION FOR PARDON

Application for pardon

3. (1) A person who has been convicted of an offence under an Act of Parliament or a regulation
made under an Act of Parliament may apply to the Board for a pardon in respect of that offence
and a Canadian offender within the meaning of the International Transfer of Offenders Act” who
has been transferred to Canada under that Act may apply to the Board for a pardon in respect of
the offence of which the offender has been found guilty.

Transfer of offenders

(2) For the purposes of this Act, the offence of which a Canadian offender within the meaning of
the International Transfer of Offenders Act” who has been transferred to Canada under that Act
has been found guilty is deemed to be an offence that was prosecuted by indictment.

R.S., 1985, c. C-47, s. 3; 1992, c. 22, s. 3; 2004, c. 21, s. 40.

PROCEDURE

Restrictions on application for pardon

4. A person is ineligible to apply for a pardon until the following period has elapsed after the
expiration according to law of any sentence, including a sentence of imprisonment, a period of
probation and the payment of any fine, imposed for an offence:

(a) 10 years, in the case of a serious personal injury offence within the meaning of section 752 of
the Criminal Code, including manslaughter, for which the applicant was sentenced to
imprisonment for a period of two years or more or an offence referred to in Schedule 1 that was
prosecuted by indictment, or five years in the case of any other offence prosecuted by
indictment, an offence referred to in Schedule 1 that is punishable on summary conviction or an
offence that is a service offence within the meaning of the National Defence Act for which the
offender was punished by a fine of more than two thousand dollars, detention for more than six
months, dismissal from Her Majesty‟s service, imprisonment for more than six months or a
punishment that is greater than imprisonment for less than two years in the scale of punishments
set out in subsection 139(1) of that Act; or

(b) three years, in the case of an offence, other than one referred to in paragraph (a), that is
punishable on summary conviction or that is a service offence within the meaning of the
National Defence Act.


                                                   25
R.S., 1985, c. C-47, s. 4; R.S., 1985, c. 1 (4th Supp.), s. 45(F); 1992, c. 22, s. 4; 2000, c. 1, s.
1(F); 2010, c. 5, s. 2.

Exception where long-term supervision

4.01 The period during which a person is being supervised pursuant to an order for long-term
supervision, within the meaning of subsection 2(1) of the Corrections and Conditional Release
Act is not included in the calculation of the period referred to in section 4 that must have elapsed
after the expiration of sentence before an application for a pardon is considered.

1997, c. 17, s. 38.

Pardon

4.1 (1) The Board may grant a pardon for an offence if the Board is satisfied that

(a) the applicant, during the applicable period referred to in section 4, has been of good conduct
and has not been convicted of an offence under an Act of Parliament; and

(b) in the case of an offence referred to in paragraph 4(a), granting the pardon at that time would
provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as
a law-abiding citizen and would not bring the administration of justice into disrepute.

Onus on applicant

(2) In the case of an offence referred to in paragraph 4(a), the applicant has the onus of satisfying
the Board that the pardon would provide a measurable benefit to the applicant and would sustain
his or her rehabilitation in society as a law-abiding citizen.

Factors

(3) In determining whether granting the pardon would bring the administration of justice into
disrepute, the Board may consider

(a) the nature, gravity and duration of the offence;

(b) the circumstances surrounding the commission of the offence;

(c) information relating to the applicant‟s criminal history and, in the case of a service offence
within the meaning of the National Defence Act, to any service offence history of the applicant
that is relevant to the application; and

(d) any factor that is prescribed by regulation.

1992, c. 22, s. 4; 2010, c. 5, s. 3.

                                                   26
Inquiries

4.2 (1) On receipt of an application for a pardon, the Board

(a) shall cause inquiries to be made to ascertain the applicant‟s conduct since the date of the
conviction; and

(b) may, in the case of an offence referred to in paragraph 4(a), cause inquiries to be made with
respect to any factors that it may consider in determining whether granting the pardon would
bring the administration of justice into disrepute.

Entitlement to make representations

(2) If the Board proposes to refuse to grant a pardon, it shall notify in writing the applicant of its
proposal and advise the applicant that he or she is entitled to make, or have made on his or her
behalf, any representations to the Board that he or she believes relevant either in writing or, with
the Board‟s authorization, orally at a hearing held for that purpose.

Board to consider representations

(3) The Board shall, before making its decision, consider any representations made to it within a
reasonable time after the notification is given to the applicant pursuant to subsection (2).

Waiting period

(4) An applicant whose application is refused may not apply for a pardon until the expiration of
one year after the date of the refusal.

1992, c. 22, s. 4; 2000, c. 1, s. 2; 2010, c. 5, s. 4.

Expiration of sentence

4.3 For the purposes of section 4, a reference to the expiration according to law of a sentence of
imprisonment imposed for an offence shall be read as a reference to the day on which the
sentence expires, without taking into account

(a) any period during which the offender could be entitled to statutory release or any period
following a statutory release date; or

(b) any remission that stands to the credit of the offender in respect of the offence.

1992, c. 22, s. 4.

EFFECT OF PARDON

Effect of pardon
                                                     27
5. The pardon

(a) is evidence of the fact that

(i) the Board, after making inquiries, was satisfied that the applicant for the pardon was of good
conduct, and

(ii) the conviction in respect of which the pardon is granted should no longer reflect adversely on
the applicant‟s character; and

(b) unless the pardon is subsequently revoked or ceases to have effect, requires the judicial
record of the conviction to be kept separate and apart from other criminal records and removes
any disqualification or obligation to which the person so convicted is, by reason of the
conviction, subject by virtue of the provisions of any Act of Parliament, other than section 109,
110, 161, 259, 490.012 or 490.019 of the Criminal Code or subsection 147.1(1) or section 227.01
or 227.06 of the National Defence Act, or of a regulation made under an Act of Parliament.

R.S., 1985, c. C-47, s. 5; 1992, c. 22, s. 5; 1995, c. 39, ss. 167, 191, c. 42, s. 78; 2000, c. 1, s. 4;
2004, c. 10, s. 23; 2007, c. 5, s. 50; 2010, c. 5, s. 5.

CUSTODY OF RECORDS

Order respecting custody of records

6. (1) The Minister may, by order in writing addressed to any person having the custody or
control of any judicial record of a conviction in respect of which a pardon has been granted,
require that person to deliver that record into the custody of the Commissioner.

Records to be kept separate and not to be disclosed

(2) Any record of a conviction in respect of which a pardon has been granted that is in the
custody of the Commissioner or of any department or agency of the Government of Canada shall
be kept separate and apart from other criminal records, and no such record shall be disclosed to
any person, nor shall the existence of the record or the fact of the conviction be disclosed to any
person, without the prior approval of the Minister.

Approval for disclosure

(3) The Minister shall, before granting the approval for disclosure referred to in subsection (2),
satisfy himself that the disclosure is desirable in the interests of the administration of justice or
for any purpose related to the safety or security of Canada or any state allied or associated with
Canada.



                                                   28
Information in national DNA data bank

(4) For greater certainty, a judicial record of a conviction includes any information in relation to
the conviction that is contained in the convicted offenders index of the national DNA data bank
established under the DNA Identification Act.

R.S., 1985, c. C-47, s. 6; 1998, c. 37, s. 25; 2000, c. 1, s. 5(E); 2010, c. 5, s. 7.1(E).

Discharges

6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of
the Commissioner or of any department or agency of the Government of Canada shall be
disclosed to any person, nor shall the existence of the record or the fact of the discharge be
disclosed to any person, without the prior approval of the Minister, if

(a) more than one year has elapsed since the offender was discharged absolutely; or

(b) more than three years have elapsed since the offender was discharged on the conditions
prescribed in a probation order.

Purging C.P.I.C.

(2) The Commissioner shall remove all references to a discharge under section 730 of the
Criminal Code from the automated criminal conviction records retrieval system maintained by
the Royal Canadian Mounted Police on the expiration of the relevant period referred to in
subsection (1).

1992, c. 22, s. 6; 1995, c. 22, s. 17(E).

Disclosure to police forces

6.2 Notwithstanding sections 6 and 6.1, the name, date of birth and last known address of a
person who has received a pardon or a discharge referred to in section 6.1 may be disclosed to a
police force if a fingerprint, identified as that of the person, is found

(a) at the scene of a crime during an investigation of the crime; or

(b) during an attempt to identify a deceased person or a person suffering from amnesia.

1992, c. 22, s. 6.

Definitions

6.3 (1) The definitions in this subsection apply in this section.


                                                   29
“children”
« enfant »

“children” means persons who are less than 18 years of age.

“vulnerable persons”
« personne vulnérable »

“vulnerable persons” means persons who, because of their age, a disability or other
circumstances, whether temporary or permanent,

(a) are in a position of dependence on others; or

(b) are otherwise at a greater risk than the general population of being harmed by persons in a
position of authority or trust relative to them.

Notation of records

(2) The Commissioner shall make, in the automated criminal conviction records retrieval system
maintained by the Royal Canadian Mounted Police, a notation enabling a member of a police
force or other authorized body to determine whether there is a record of an individual‟s
conviction for an offence listed in Schedule 2 in respect of which a pardon has been granted.

Verification

(3) At the request of any person or organization responsible for the well-being of one or more
children or vulnerable persons and to whom or to which an application is made for a paid or
volunteer position, a member of a police force or other authorized body shall verify whether the
applicant is the subject of a notation made in accordance with subsection (2) if

(a) the position is one of authority or trust relative to those children or vulnerable persons; and

(b) the applicant has consented in writing to the verification.

Unauthorized use

(4) Except as authorized by subsection (3), no person shall verify whether a person is the subject
of a notation made in accordance with subsection (2).

Request to forward record to Minister

(5) A police force or other authorized body that identifies an applicant for a position referred to
in paragraph (3)(a) as being a person who is the subject of a notation made in accordance with
subsection (2) shall request the Commissioner to provide the Minister with any record of a


                                                 30
conviction of that applicant, and the Commissioner shall transmit any such record to the
Minister.

Disclosure by Minister

(6) The Minister may disclose to the police force or other authorized body all or part of the
information contained in a record transmitted by the Commissioner pursuant to subsection (5).

Disclosure to person or organization

(7) A police force or other authorized body shall disclose the information referred to in
subsection (6) to the person or organization that requested a verification if the applicant for a
position has consented in writing to the disclosure.

Use of information

(8) A person or organization that acquires information under this section in relation to an
application for a position shall not use it or communicate it except in relation to the assessment
of the application.

Amendment of schedule

(9) The Governor in Council may, by order, amend Schedule 1 or 2 by adding or deleting a
reference to an offence.

2000, c. 1, s. 6; 2010, c. 5, s. 6.

Operation of section 6.3

6.4 Section 6.3 applies in respect of a record of a conviction for any offence in respect of which a
pardon has been granted regardless of the date of the conviction or the date of the pardon.

2000, c. 1, s. 6; 2010, c. 5, ss. 7.1(E), 7.4(F).




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