Case Report – Ont. C.A. allows criminal records check appeal about disclosure of withdrawn charges

30 May

Yesterday, the Ontario Court of Appeal held that a police service lawfully disclosed information about an individual’s withdrawn criminal charges in the course of administering background checks.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 At trial, the charges were withdrawn and the applicant entered a peace bond.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 after conducting a vulnerable persons search. In response, he brought a successful application for an order to have information about the withdrawn charges expunged from police records.

The Court of Appeal held that the applications judge erred to the extent that he found that the applicant did not give specific consent to the disclosure of the withdrawn charges. The Court held that consent to disclose this information could be inferred in the circumstances even though the written consent form did not expressly refer to withdrawn charges. This essential finding is illustrative but fact-based. More broadly, however, the Court also found that the consent was not invalid because it was coercive. It said the following about the fairness of background checks:

The fact that a person effectively must consent to a Vulnerable Persons Search in order to apply for certain types of jobs may be perceived as coercive and, in that way, possibly unfair. In regards to this alleged coercion, the affidavit evidence in this case indicates that these searches are necessary in order to give prospective employers involved with vulnerable persons all potentially relevant information about potential employees, within the bounds of the permissible disclosure of personal information under MFIPPA. Also, in a case where withdrawn charges which were false are disclosed, the potential employee has the ability to explain the circumstances to the proposed employer.

The Court also rejected arguments that the disclosure breached the applicant’s rights under sections 7 and 8 of the Charter.

This highlights the vulnerability of individuals in Ontario who are charged of criminal offences but not convicted given the recent finding by the Human Rights Tribunal of Ontario that the “record of offences” protected ground does not protect persons only charged with offences. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 (CanLII). [Addendum: A contact has told me the complainant in de Pelham has stated his intent to file an application for judicial review.]

Tadros v. Peel (Police Service), 2009 ONCA 442.

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