Friday, 13 June 2014

Police  Records  that  can  haunt  the  innocent             

Anyone who has ever seen the movie, Les Misérables or read the novel written by Victor Hugo will appreciate the agony that the protagonist, Jean Caljean, an ex-con went through while attempting to reform himself and being hounded by the police detective that wanted to arrest him because he believed that ex-convicts could never reform themselves. That story took place in the era of the nineteenth century in France. Alas, that problem still exists in Canada in this century with a rather strange twist. First, let me give you some background information.

When anyone is arrested for any offence in Canada, no matter how minor, a permanent record is placed in a Royal Canadian Mounted Police (RCMP) computer in Ottawa. When any police officers anywhere in Canada want to check to see if anyone has a record or is wanted by the police, they check with the federal  computer that they are linked with that goes by the name, the Canadian Police Information Center (CPIC )          

This is also the preferred method of criminal background screening used by Canadian employers. While there may be a match pointing to a possible criminal record, it does not mean that the person subject to the check is the subject of that criminal record. For example, the person may only be an innocent witness to a crime and is being sought by the police.

In the past, to establish if the person applying for a job was a former criminal or a current suspected criminal, this could only be positively confirmed with the submission of fingerprints at the police station. While a persons’ name may change, their fingerprints do not. If a person already has a criminal record under one name and was convicted of a crime under a different name, the fingerprints would always be matched to the original record.

Now the employers or prospective employers don’t have access to the fingerprints of those charged with criminal acts. But they do have access to many other aspects of matters that were of concern of the police such as attempted suicide or even cases where the person was tried and acquitted or the charges were withdrawn.

Anyone requiring a police check at the request of an employer or prospective employer must go to the police department in the area that he or she lives and obtain a police document that will say there is no record or alternatively, state what the CPIC record says about him or her.

Obviously, if a person is applying for a job as a teacher and has a previous conviction of child molestation, that information on the police document will state that and that person won’t be hired, or even trained to be a teacher and rightly so. This method of checking up on people is a good one only if it is used fairly which on many occasions, it is not.

As an example, suppose when you were 18 years of age and were kicked out of your home and you were on your own with no real education and no hope for employment. And after four days of having nothing to eat, you steal a loaf of bread in a store and are caught. The police are called and you are charged with shoplifting. The judge has sympathy for you and suspends the sentence but you still have a record of theft in CPIC. Five years after finding work on a farm, you have moved to a city and applied for a job working in a grocery store. You worked at the store for many years and became a supervisor. Now a new owner takes over the store and he wants his staff to submit police checks to him. Your police document states that you were convicted of theft. It doesn’t give details as stating that you got a suspended sentence because you were hungry and stole a loaf of bread which incidentally was immediately returned to the store. The new employer tells you that he doesn’t want thieves in his store and is going to fire you. You try to tell him what really happened but he doesn’t care. You are fired and now without a job to continue paying your rent and buy food to eat. You fall behind on your rent and are kicked out of your flat and now you are like you were when you got kicked out of your home many years ago—homeless and hungry.   

Victor Hugo’s Jean Caljean stole a loaf of bread and did his time and later became the mayor of a town and the owner of a factory and yet he was hounded by a police officer just as you are being hounded years later by a police department. Is this fair? Is it right?  The answer to both questions is NO!

Unfortunately, this is going on in much of Canada. The cruel irony of this is that if you were convicted of manslaughter because of drunk driving and responsible for three deaths as a direct result of the accident you caused and after you served your time and were later given a pardon which you could apply for and got if you hadn’t committed any more crimes, a police check will not display your previous conviction of three counts of vehicular manslaughter.  You could then get the job of being a school bus driver.

Is it fair and just that you could get a job as a school bus driver after killing three people as a drunk driver when the man next to you is fired for stealing a loaf of bread?  There is something in this system that doesn’t pass the smell test.

One man in the Province of Ontario said that he lost two jobs in his field and was refused many more as a result of a theft charge that showed up in the police check. Not only was the charge laid nine years earlier, the charge was withdrawn by the prosecutor. The charge was initially laid because while he was exiting a Sears store, the shoplifting alarm went off.  But when he was stopped by the security personnel in the store, they didn’t find any stolen goods on him. The police however charged him with shoplifting but later, the prosecutor realized that there wasn’t any evidence that he stole anything and withdrew the charge. Even though he had his photo and fingerprints destroyed, all that additional information wasn’t placed in the police check and his employers who fired him weren't interested in his explanation or those whom he later applied to for work.
In addition to this police record being in CPIC, he will have difficulties in crossing the border into the United States since the Americans don’t want Canadian criminals crossing into the United States.

Section 5 of Ontario’s Human Rights Code prohibits discrimination in employment on the basis of a record of offences including an offence in which a pardon has been granted. Unfortunately, the Code doesn’t address discrimination of allegations of offences that were never proved in a court of law.

It is most unfortunate that this police/employer farce continues in Ontario to the detriment of innocent people who were deemed not guilty of the offences listed in the police documents they have to show their employer or prospective employer.

Other provinces and territories in Canada including Manitoba, British Columbia and the Yukon, provide much more protection to employees and potential employees from this kind of official abuse.

Many years ago, I was charged with impersonating a peace officer and assault. This came about after I knocked a retired professional boxer out after he tried to drag me back to his apartment after I served on his wife, a copy of a multi-million dollar claim that had been filed in court against her. At that time, I was a professional process server and licenced as a private investigator. The charge of assault was dismissed at trial and also was the charge of impersonating a peace officer. The prosecution appealed that latter charge and it finally ended up in the Ontario Court of Appeal. I argued my own appeal and won.

Now if it hadn’t been for the fact that the federal government of Canada had ordered that all records of the charges against me were to be literally destroyed and removed from CPIC, the local police records and the Ontario Archives, (a very rare order indeed) I might very well have had a problem later to acquiring another licence to work in Ontario as a private investigator. That is because the mandatory annual police check would only show that I was charged with impersonating a peace officer and assault. It wouldn’t say that one charge was dismissed and the other was appealed and that I had I won the appeal.

A great many employers are asking for these police checks unnecessarily thereby creating problems for people seeking work when the work they will be doing doesn’t really justify that kind of intrusion into a person’s life.  Worse yet, they are firing people when they learn that they were charged with offences even when the charges were dismissed in court or withdrawn by the prosecution. 

One Toronto man was on his way to a prestigious trade conference in the United states but thanks to a minor contact with a police officer 24 years earlier, he was stopped at the border when the US border people saw that particular incident in their computer. The incident involved a police investigation to determine if he was in possession of illicit drugs. He was charged with smoking a reefer but the charge was dismissed in court. Despite that fact, the charge remained in his police records to haunt him 24 years later. He lost a lot of potential business as a result of not being permitted to enter the US to attend that conference. His record in the police computers raises an interesting question. Why does a minor charge that is filed when he was a high school student; a charge that was dismissed, destroy a mature law-biding businessman's opportunities by refusing to let him enter into the United States to attend a trade conference he had spent months preparing for? 

One woman was refused a job as a cashier because she made a 911 call to the police when she felt faint after accidentally taking too many pain killers to reduce the pain she was suffering from. The police record described the event as an attempted suicide. Both the police and the prospective employer were fools. The woman was highly qualified for the job. Now if another woman who applied for the job had ten years earlier been convicted of defrauding her employer and later got a pardon, she could very well have got the job because the police check would show nothing about her fraud conviction whatsoever. It makes you wonder how a dim-witted employer can still be in business.

Another woman was rejected by an organization to work with vulnerable youth after they received her police report. She was listed as a "person of interest." It seems that she fell asleep while she was baking a pizza and a fire ensued in the oven. She called the fire department and they put it out. When the police realized that she was asleep with her young son in the house, they called Children Services. The worker came and concluded that she had done no wrong and closed her file. Despite that, the organization that had considered using her services to work with vulnerable youth decided they didn't want her help. That is their loss and that of the youth also. 

The Toronto Police Service really screwed up when they put a woman's name in their data base and said that she was a 'person of interest' in the sudden death of her stepfather. The term, 'person of interest' means that that person is suspected of having brought about the death of the victim. It turned out that the coroner ruled that her stepfather actually died as a direct result of pneumococcal meningitis and diabetes. The Toronto Police Service corrected the information in their data base by changing the words 'person of interest' to 'witness'. She had to go to the Office of the Independent Police Review to get the police to change the designation. One is forced to wonder why anything  pertaining to the death of her stepfather should be in a police check document in the first place. 

As many as one in three Canadians have their names in data bases for one reason or another. Alok Mukherjee, the chairman of the Toronto Police Services says that these figures are astounding. He said "I think it is a product of society's anxiety about safety and security. When in doubt, you put the name in the data base."

Where is there doubt when you consider the fact that a mature and law-biding businessman whose charge when he was a teenager was dismissed 24 years ago that necessitates that information should remain in the police data base?

Unfortunately, a large number of employers and social agencies are demanding police checks and the police are giving them police information that is in no way  pertinent for the job applied for or the work in the social agency  that the applicant is willing to do. 

The provincial government of Ontario has to bring an end to this nonsense. The recently elected leader of the Liberal government of Ontario has stated that she has been working hard to tackle this problem. She said, “It is important that we address this issue while striking a balance between community protection and personal freedom.”  Amen to that.

I believe that the best way to deal with this problem is to restrict police departments as to what they can put in those police reports.  If a person has been acquitted of an offence or the charge was withdrawn, there should be nothing in the police report saying anything about the charge having been laid in the first place. Further, health issues such as attempted suicide should also be omitted. 

It seems to me that governments in power seem to always want to whittle away our rights to privacy. The American public was shocked when it learned that the National Security Agency was covertly snooping into their private affairs on the premise that they were looking for terrorists.  That is akin to vacuuming the entire house after you dropped your coffee on the kitchen floor. The American’s Canadian cousins feel no different. 

I don’t have a problem with the police keeping in their records information about attempted suicides. That information can be useful if they get a call about someone acting strangely. It could mean that that person may be looking for another way of committing suicide by being shot by the police. But keeping records of people who were charged by the police but later acquitted of the crimes they were accused of or in cases where the charges were withdrawn by the prosecution, serves no purpose at all to the police.

To include this information in a police document that is to be given to an employer or prospective employer is outrageous. And for the employers and prospective employers to presume that such information implies that there is something wrong with the subjects of these police reports is ludicrous. This also apples to American border officials who refuse to let Canadians with this particular information in CPIC into the United States since that is also equally ludicrous. The practice of CPIS sharing data with the Americans does require a review especially when you consider that Canadians who were acquitted of the charges against them of had their charges withdrawn are still being turned away by American border officials.

I would be amiss if I didn`t say that the Ontario cities of Hamilton, Waterloo and Ottawa do not include information about attempted suicides in their reports but they didn’t say that they don’t include acquittals and withdrawals of charges in their reports. The Toronto Police is intransigent. They will still put everything other than pardoned crimes in their reports. They say that if anyone who was acquitted or had their charges withdrawn, they can apply to the Toronto police and have them removed. Many say that the process is lengthy and often ends up as a failure. 

If the federal government hadn’t ordered that my police record was to be completely destroyed, I would face problems similar to those unfortunate people whose police records hang around their necks like the Ancient Mariner’s albatross.      

UPDATE: July 17, 2014

The Ontario Association of Chiefs of Police has now issued strong new recommendations with respect to limiting disclosure of routine information about non-conviction records to the public. As of yet, it is not clear as to how many of the 71 police forces in Ontario will abide by those recommendations. 

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