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Criminal Records Checks

A recent decision by the Ontario Court of Appeal, Tadros v. Peel (Police Service), 2009 ONCA 442 [“Tadros”] makes it clear that when an individual consents to a criminal history check, the police are at liberty to disclose information about charges that have been withdrawn by the Crown. This decision is of great significance to individuals in the Greater Toronto Area who have been charged with a criminal offence. It is not uncommon for the Crown to offer to withdraw the charges against an accused person if the accused enters into a peace bond which requires that they keep the peace and be of good behaviour. One of the benefits of entering a peace bond and having the charges withdrawn is that the accused avoids a criminal record. Following Tadros records of withdrawn charges may be kept by the police and disclosed as part of a background check as long as the police obtain the sufficient consent. Tadros affects not only those who are currently facing criminal charges, but also individuals who have been accused of crimes in the past. As criminal defence lawyers, we believe that it is crucially important that information about this decision is freely available to all individuals who have a criminal history. We strongly encourage any individual who has ever been accused a crime to read the following brief summary decision in Tadros and the effect it could have on your future job prospects.

Tadros v. Peel (Police Services)

In Tadros the defendant, Magdy Taldros, was accused of four counts of sexual assault and four counts of sexual exploitation related to allegations made by youth residents of a group home he operated in the Peel region. A year and a half later, the charges were withdrawn by the Crown. Mr. Tadros agreed to enter into a peace bond to keep the peace and be of good behaviour, but maintained that he did not commit the crimes alleged against him.

Years later, when applying for a job, Mr. Tadros signed Toronto Police Services authorization forms requesting a “Criminal Records Search” and, because his job involved working with young people, a “Vulnerable Persons Search”. The Criminal Records Search did not disclose any information about the charges which were withdrawn against him because withdrawn charges do not appear as a criminal record. However, the Vulnerable Persons Search did disclose the eight withdrawn charges. The court found as a fact that this information led several employers to deny Mr. Tadros’ application for employment. Despite the effect the disclosure had on Mr. Tadros, the Ontario Court of Appeal found that information pertaining to withdrawn charges could be disclosed if the specific individual who was charged consents to the disclosure. In coming to their finding, the Court of Appeal relied on s. 32(b) of the Municipal Freedom of Information and Protection of Privacy Act which states that a Chief of Police is entitled to disclose personal information with the specific consent of the affected individual. Having found that information about withdrawn charges is properly considered “personal information” and that Mr. Tadros gave proper consent to the disclosure of that information, the Court of Appeal was bound by s. 32(b) to find that the disclosure was legal.

“Vulnerable Persons”

The decision is Tadros primarily affects individuals who are applying for jobs which involve interacting with “vulnerable persons”. For legal purposes, the category of “vulnerable persons” generally includes those who, because of age or disability, are in positions of dependence that make them vulnerable to abuse by individuals in positions of authority. Generally, the term refers to children but it can also refer to individuals with some forms of mental or physical disability, the elderly, and the infirm. Crimes against vulnerable persons generally take the form of sexual or physical abuse.

Generally, when an individual applies for a job, his or her employer will request a Criminal Records Search. However, when an individual applies for a job working with vulnerable persons, the employer may request a Vulnerable Persons Search. While a Criminal Records Search only discloses an individual’s criminal record, a Vulnerable Persons Search goes further by disclosing any encounter between the individual in question and the police which may have bearing on his or her ability to interact safely with vulnerable persons.

Consent

One of the major issues stressed by the Court of Appeal in Tadros is that information which does not appear on an individual’s criminal record, such as information about withdrawn charges, can only be revealed with proper consent of the affected person. Though this type of information can only be revealed with consent, often an individual applying for a job is required to consent to disclosure of that information in order to be considered for the position. This means that if you have withdrawn charges for an offence against a vulnerable person and you wish to continue to work with vulnerable persons you may find yourself trapped in a situation where you must either consent to a Vulnerable Persons Search and disclose the withdrawn charges or look for work in a different field.

This decision does not only apply in the context of a Vulnerable Persons Search. The main finding in Tadros is much more general. Tadros stands for the proposition that the police can disclose information about charges where no conviction was found (i.e., charges that do not appear on the individual’s criminal record) so long as the affected individual consents to that disclosure. A Vulnerable Persons Search is simply the most common example of a situation where an individual may be asked to consent to additional police disclosure in the context of applying for a job. It is conceivable that information about withdrawn charges in other areas could be requested by employers, in which case individuals would find themselves in a position where they are asked to give the police permission to disclose information about other types of withdrawn charges.

Conclusion

As criminal defence lawyers, we at Kostman & Pyzer, Barristers find the decision in Tadros deeply troubling. One of the most fundamental tenants of our criminal justice system is that an individual who is accused of a criminal offence is innocent until proven guilty on the evidence before the court. When charges are withdrawn this usually means that the Crown does not have a reasonable prospect of convicting the accused on the evidence. These individuals should not have to bear the burden of unsubstantiated charges for the rest of their lives. Unfortunately, the ruling in Tadros means that if an individual makes an entirely fictitious and vexatious claim against you and you are charged on the basis of that claim, you could end up encountering problems in your future employment endeavors even if the charges against you are withdrawn. We can only hope that the Supreme Court of Canada or Parliament will choose to reverse the decision in Tadros at some time in the future. Until then, we thought it important to let all our readers know about the decision and the negative effect it could have on the everyday lives of individuals living in the Greater Toronto Area.

20 Jul 2009

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