Case Report – Breadth of disclosure in criminal background checks unlawful

On October 5th, the Ontario Superior Court of Justice held that a police service unlawfully disclosed information about an individual’s withdrawn criminal charges in the course of conducting background checks.

The applicant, a social services worker, was charged with four counts of sexual assault and four counts of sexual exploitation. At trial, the charges were withdrawn and the applicant entered a peace bond. The applicant was later denied a license for a group home, denied employment and terminated from employment, assumingly based on information provided in criminal background checks. In response, he brought an application seeking an order to have information about the withdrawn charges expunged from police records.

The Court held that the police were authorized to collect and retain information about withdrawn charges and rejected the applicant’s (potentially disruptive) argument that retention of the records violated various Charter provisions. It did, however, hold that the applicant had not given his informed consent to disclosure. There was a dispute about whether the applicant actually signed any consents, but the Court held that the police service’s standard consent form was nonetheless insufficient to support disclosure of information about the withdrawn charges:

In this application, none of the relevant pieces of legislation were attacked and people unfamiliar with the legislation might be forgiven for being surprised at the breadth of information police services are authorized to maintain. I conclude, however, that the maintaining of information that charges have been laid, albeit subsequently withdrawn, is not in any way prohibited by legislation. On the other hand, I see nothing in any legislation which authorizes the release of information reporting that the subject of the inquiry was charged with sexual offences, which were subsequently withdrawn. The release form, which may or may not have been signed by Mr. Tadros, is not sufficiently specific in its terms to encompass this particular eventuality, and Mr. Tadros could be excused for assuming that at the time the application was made for the information, he had no record of any sort and need not be concerned about any adverse effect which might result on his employment prospects. There is a basic unfairness in the dissemination of this type of information as evidenced by the apparent effect it did have on his employment chances.

The breadth of information provided in Ontario criminal background checks has been the subject of significant criticism. For information on the policy-related significance of this judgement see “Criminal Background Checks – Balancing Public Safety, Security and Privacy” by John Swaigen.

Tadros v. Peel Regional Police Service, 2007 CanLII 41902 (ON S.C.).