Sewell: Acquitted? Your records may still follow you

By John Sewell –

The Toronto Police Services Board alternates its monthly meetings between Committee Room 2 at city hall and the auditorium on the second floor of the College Street police headquarters. But neither space seems to get the seven members of the board into a democratic frame of mind where they exhibit enthusiasm and interest in public points of view about policing issues.

Maybe it’s the space. Both rooms are unfocused, vaguely airey venues where the public gets lost among all many attending officers in uniform. Perhaps it is the crispness with which the chair, Alok Mukerhjee, tells every speaker that, unlike any board member, they will be held to a firm five minutes for what they have to say. Or it could be that the members of the board are exhausted, having already spent about four hours meeting in secret about the really important police business before this 1:30 p.m. public session gets underway.

All of these limitations were on display one recent Thursday afternoon as the board was challenged on the way the police force retains fingerprints, photographs and records on those who have not been convicted of a crime. Police call these cases “non-conviction dispositions” and they happen when charges are withdrawn or dismissed, the proceedings are stayed, or the individual charged is found not guilty and acquitted.

Most of us would assume when we walk out of court after a non-conviction that’s the end of the matter, but not the police. They hang on to this material and can ambush you with it when you least expect.

The ambush comes when you volunteer for a social agency, and you tell them you have no criminal record. The agency asks for confirmation from police, and you make the necessary application only to be told that police have files on you because you were charged with something, even though you were never found guilty. You crawl back to the agency with this surprise and they say they’ll call you back when they need you, which of course doesn’t happen. You learn the police don’t assume that you are innocent until proven guilty.

In a report to the board, the chief stated the force holds fingerprints, photographs and records for about 100,000 non-convictions and the number increases yearly.

The policy to retain these documents was challenged in court half a dozen years ago and the Court of Appeal ruled that the police had to show why retaining a particular record was in the public interest. Since then, the provincial Information and Privacy Commissioner Ann Cavoukian has forcefully intervened, arguing these non-conviction records must be destroyed.

The chief told the board this is not practical and maybe not in the public interest since some of this information may be of assistance to the police. He proposed a new policy allowing individuals to apply to have the records destroyed, with an appeal if the police refused.

The IPC and the Criminal Lawyers Association argued that even this new position was contrary to the Charter of Rights, since it put the burden of action on the non-convicted rather than on the police. On behalf of the Toronto Police Accountability Coalition, I asked that whatever decision was made about retaining records, the key issue was making sure that the police did not reveal this information to prejudice someone who had never been convicted.

The board members seemed uninspired by the objections. Councilor Pam McConnell said that the question of reference checks was “an entirely different matter” than the question of retaining records. Former judge Hugh Locke thought maybe federal legislation was needed. Hamlin Grange said it was a question of charter rights versus public safety.

Mayor David Miller finally spoke after a long and muddled debate, suggesting the new policy be adopted now as a step forward since it permitted an individual who learned about the police maintaining these records of a non-conviction to appeal a police decision not to destroy them. He also suggested a further report in about six months time on how the new policy will be implemented and whether it will have any impact on reference checks.

The board found that a happy resolution and endorsed it. The only losers are those who thought that when the charge was withdrawn or they were acquitted, that they had a clean record. As they get ambushed on their reference checks, they’ll find that nothing has changed.