Organizations are requiring police checks more often for employment, even for volunteer work, and it’s becoming an issue for lawyers’ clients.
We’re all familiar with the garden-variety criminal record check, but there’s a more elusive one: the vulnerable-sector safety check. Clients who want to work or volunteer with children, the elderly or people with disabilities often have to get these checks done.
If you haven’t had a call from a client who was denied a clear vulnerable-sector safety check, you probably will soon.
It’s not enough for clients to have a charge withdrawn as they may still be refused a clear vulnerable-sector safety check.
Even arranging for the destruction of your clients’ fingerprints and photographs from their arrest won’t expunge the offending information because the police keep and disclose their own internal records.
How common are these vulnerable-sector checks? They’re exceedingly common. In 2008, the Ottawa Police Service alone processed 40,885 requests for vulnerable-sector safety checks. There were 36,453 requests the previous year.
In one case, I recommended to a client not to disclose a negative vulnerable-sector check. The incident hadn’t even resulted in charges. We arranged for the client to have a personal interview with an officer from the detachment.
After providing an explanation for the incident, the client made a fresh, successful application for a vulnerable-sector safety check.
One matter,
J.N. v. Durham Regional Police Service, found its way to the Superior Court in Oshawa, Ont., in 2011 when a disappointed applicant for a vulnerable persons search sought an order to have a non-criminal entry expunged.
J.N. was a 52-year-old woman charged with assaulting her father. The Crown had withdrawn the charge, and the accused didn’t have to enter into a peace bond as is common with a withdrawal.
For three years, she struggled to find work in her chosen field, but both the designated police committee and the chief of police had refused to delete the reference to the charge.
On the facts, Justice John McDermot found breaches of the common law right to fairness and the principle of fundamental justice in s. 7 of the Charter of Rights and Freedoms.
The Canadian Civil Liberties Association was an intervener in the matter. In his factum, counsel David Rose noted that a person who has been convicted can apply for a pardon or record suspension yet someone whose charge is withdrawn doesn’t even get notice that authorities are keeping the record.
On March 28, 2011, following arguments in the J.N. case, the Ontario Association of Chiefs of Police established non-mandatory guidelines.
The LEARN Guideline for Police Record Checks is a long document that provides for disclosure of, among other things, discharges that occurred locally, peace bonds and restraining orders, diverted criminal charges, and withdrawn and dismissed matters.
Police will consider negative contacts for five years or more where there’s evidence of a pattern of behaviour. They’ll release information about attempted suicides pursuant to the guidelines depending upon how recently and frequently they occurred.
The LEARN guideline has an appeal procedure called a reconsideration process. The client should request the reason for the denial. People should bring the appeal within 60 days.
But just having a process doesn’t preclude judicial review, something the police may want to avoid. It’s one thing to refuse the vulnerable-sector check if applicants are dangerous but another if they’re not.
Employment, education, and reputation all hang in the balance when a negative vulnerable-sector safety check besmirches a person’s good name. This is a new area where defence counsel can offer significant assistance to clients.
Rosalind Conway is a certified specialist in criminal litigation. She can be reached at
[email protected].
