Addictions, Mental Health and Police Records: An examination of the impact of non-conviction records, issues and solutions

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1 Addictions, Mental Health and Police Records: An examination of the impact of non-conviction records, issues and solutions Police Records Check Coalition Jacqueline Tasca Abby Deshman Theresa Claxton Irina Sytcheva

2 Presentation Overview: 1. Setting the context 2. Definitions and levels of record checks 3. The human impact 4. The legal frameworks: privacy and human rights 5. Common sense approach? 6. Resources and discussion

3 Part 1: Setting the context Gord s Story

4 Part 2: definitions What kinds of records do police keep, what is a criminal record, and what do different kinds of record checks show?

5 What kinds of information do police keep? And where? Lots of information! Convictions - guilty pleas, fines, sentences People who are convicted can receive a record suspension (pardon) Findings of guilt - absolute or conditional discharges Other non-conviction information Acquittals Withdrawn charges Mental health and community contacts Witness information Etc. Police databases are local (individual forces) and national (eg. CPIC)

6 How do they disclose this information? Levels of Record Checks Criminal Record Check Police Record Check/Police Background Check Vulnerable Sector Check

7 Level 1: Criminal record check What is a Criminal Record? Most broadly speaking, a criminal record is a transcript of one s criminal interactions with law enforcement. Many believe a criminal record is only criminal offences which resulted in a conviction and have not been subject to a record suspension (pardon). But what about Absolute or conditional discharges Pending charges

8 Level 2 - police record check or background check A police record check is far more exhaustive than a criminal record check and can include many nonconviction and non-criminal contacts with local police services. Records are often created when an individual comes into contact with police. These records are often maintained on local police services databases, although some also are uploaded nationally. This includes mental health crises, victimization, arrests, being questioned as a person of interest, dialing 9-1-1, witnessing a crime, etc.

9 Non-Conviction Dispositions Acquittal at Trial Stay of Proceedings Withdrawn charges no prospect of conviction Withdrawn charges Peace Bond Withdrawn Charges - Diversion Absolute and Conditional Discharges

10 Records of Contact Street checks Witnesses Victims Persons of interest Suspects Mental health contacts

11 Mental Health Police Records A mental health police record can be created if: 911 call for help due to a mental health crisis Concerned family member intervenes and calls 911 or contacts a Justice of the Peace A police officer believes a person is having a serious mental health crisis and transports the person to the hospital for assessment A doctor requires a person to be taken to the hospital for assessment or treatment

12 A mental health police record is generated regardless of whether the person is admitted to hospital.

13 Level 3: Vulnerable sector check Reserved for those situations where someone is in a position of trust or authority towards a vulnerable person (eg. children, elderly, disabled, etc.) Includes non-conviction information Can reveal certain suspended records (also known as pardoned offences)

14 Part 3: The human impact

15 Lois Story

16 Impact to Individuals with NC Records Disclosing non-conviction records leads to unwarranted stigma, loss of trust or respect, and places a burden on the individual to explain the incident to employers and risk being denied for employment, housing, insurance, citizenship, etc. With mental health police records specifically, disclosure can negatively impact an individual's wellness and recovery. Such disclosures are discriminatory and contribute to the stigma of mental illnesses. Presumption of innocence?

17 Privacy Issues People are unaware that they have a police record because of non-conviction disposition and/or are unaware of the other kinds of information contained in police databases that can be disclosed; People are often unaware of what type of police check they agree to and are unaware of what is being disclosed on these respective checks; There are questions about whether consent for backgrounds checks is truly voluntary (versus compelled).

18 Breadth of Areas Impacted by NC Records Adoption/foster applications, child custody and access, civil and family law Employment, education, and volunteering for work experience Immigration, travel Housing, credit/insurance

19 Education and jobs Disclosure can prejudice employability Timing is a very big issue - missed opportunities Employer/agency understanding of nonconviction information is low

20 Travel Clients that plead guilty to enter direct accountability programming may think they will have no criminal record or that travel to the U.S. will not be affected. Since the U.S. and some other countries have access to the CPIC system, border officials use CPIC to determine whether individuals have criminal records.

21 Purging Non-Conviction Information There is not consistency across Ontario police services with respect to purging nonconviction information; Each police service deals with these requests differently. In 2011 the (optional) LEARN Guideline was released by an OACP Subcommittee to inform how police services release mental health information.

22 Part 4: The legal framework As employers and volunteer managers, what can you request, what can t you request, and what should you do with the information? Privacy, human rights, employment law

23 Mark s story

24 A. What do you have an obligation to ask for? Some clear statutory obligations eg. Long Term Care Homes Act and Regulations, screening for SOME staff and volunteers who are 18+ must include criminal reference checks Some ambiguous statutory obligations but it s a stretch, not supported by common sense or case law Occupational Health and Safety Act Income Tax Act We have not found any Canadian cases where an employer liable for not running a reference check

25 B. Limits - what you can t ask for Nothing without the applicant s consent!! Unionized, government workplaces, existing employees - more complex privacy legislation, contracts Youth Criminal Records (sort of more on that later ) Vulnerable Sector Searches

26 Limits on requesting vulnerable sector searches Criminal Records Act At the request of any person or organization responsible for the well-being of a child or vulnerable person 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 if (a) the position is one of trust or authority towards that child or vulnerable person; and (b) the applicant has consented in writing... vulnerable person means a person who, because of his or her age, a disability or other circumstances, whether temporary or permanent, (a) is in a position of dependency on others; or (b) is otherwise at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them.

27 C. Limits - what you can t receive Many police services have different rules about what they will and will not release Pardoned convictions (now called record suspensions) are sealed with some exceptions on a vulnerable sector check At least at the Federal level, time-based limits on disclosure of absolute (1 year) and conditional (3 years) discharges Youth Criminal Justice Act is complex

28 Youth Criminal Justice Act Very specific provisions regarding who has access, for what purposes, during what time (generally, tightly limited youth, lawyers, government justice system participants, etc.) Youth have access to their own records, BUT: No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act. (s. 129, YCJA)

29 First Guideline to suggest standard police record check practices across all police services within the province; Guideline prohibits the disclosure of non-criminal, non-charge mental health information or mental health interactions with police; Prohibits the use of any mental health terminology from police record check reports (i.e. put on Form 1, apprehended under MHA s.17, suicidal, mentally ill, diverted to crisis care, attended by mobile crisis intervention team, etc.). Was amended Sept 2013, other changes being considered

30 D. Limits - what can you do with the information you receive? Human Rights legislation Protection against discrimination based on a record of offences (pardoned or record suspended convictions) and disability (including mental health) Information you request/use must be linked to a bona fide job requirement Privacy considerations Highly private information storage, retention, use, disclosure concerns

31 Summing it up No comprehensive overarching laws Police policies vary widely Lack of human rights protections for nonconviction information Consent -based framework - inadequate to protect individuals Employers and volunteer agencies need to be proactive to put in place rights-respecting practices

32 Part 5: A common sense approach?

33 Why do you screen volunteers or employees? Identify what you want - find the right person with the right skills, commitment Tailor all your application and screening process to the necessary skills, education, commitment, etc. Ensure you have dignity, privacy and rightsrespecting employment policies and practices

34 Do not make assumptions Boogey men and bad people - reality check What does a criminal record check tell you? Majority of bad people had no criminal record Things intentionally left off police checks Records backlogs, bad data Even if they have a record - is that predictive of future behaviour? Research says no for vast majority When it comes to non-conviction information what do these allegations tell you about a person?

35 Tips for rights-respecting hiring Have a policy and process in place that uses appropriate tools focused on selecting the right person; Ask only for the information that you actually need in order to judge whether this person meets the specific job qualifications; Apply policies and processes consistently; Keep private information private; When you receive the personal information, have a sensitive decision-making framework; Do not make decisions made based on stereotypes.

36 Police Checks as Part of Screening Organizations should ask themselves a number of questions when determining if and what type of police information is required for a specific position. Do you actually need this, or are you just going through the motions? Not stamps of approval, or disapproval Particularly with non-conviction records - treat with significant caution Is the request based on a demonstrable bona fide requirement of the position (based on relevant Human Rights legislation)? What, if any, police information would preclude the applicant from being suitable for the position?

37 Volunteer Screening Handbook 1. Assessment Position 2. Assignment Recruitment 3. Application 4. Interview 5. References 6. Police Checks 7. Orientation and Training 8. Support and Supervision 9. Follow-up and Feedback

38 Part 6: Resources and discussion How do you or your organization interact with police records checks?

39 What is your interaction with this issue? What are your organization s most pressing concerns about non-conviction information disclosure? What solutions can be implemented immediately, without legislative change or additional resourcing, to begin to address some of these concerns? What do you think are the barriers to implementing some of the best practice processes/policies identified during the presentation today?

40 Resources Public Safety Canada s Volunteer Screening Handbook; CCLA s FAQs, Presumption of Guilt report CCLA & JHSO On the Record Public education project for social service agenices, court professionals and employers; CCLA Project funded by Information & Privacy Commissioner; Join the Police Record Check Coalition! Please fill out your contact info if you re interested in learning more about any/all of these resources/initiatives!

41 Thank you! Questions? Contact us:

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