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Police should be forced to justify reasons why they would divulge information related to withdrawn charges, says Toronto criminal lawyer David Rose.
People who have had charges withdrawn, “Should have the ability to make their case for expungement and the criteria by which the police hold on to the information so they know the case to meet,” says Rose, reacting to a recently-released report from the Canadian Civil Liberties Association. “That way innocent persons’ privacy interests can be properly protected.”
Rose, a partner with Neuberger Rose LLP, says the issue of police disclosing non-conviction records has sweeping affects across the country.
“The problem raised here is that tens of thousands of Canadians have their assault charges withdrawn every year,” he says. “Each one of them risks having their employment prospects weakened merely because they were charged at all.”
In J.N. v. The Durham Regional Police Service and the Durham Regional Police Services Board, a woman, J.N., was charged with assault arising from a family dispute. The Crown withdrew the charge, and Justice John P.L. McDermott wrote in his decision that the “charge apparently had no merit.” Rose represented the Civil Liberties Association at both the lower level and at the appeal court. Read Prior Story … Read Appeal Decision
J.N. applied for a job with the Durham Catholic District School Board and her application, as often happens with many positions where children or other vulnerable persons are involved, required the submission of a criminal information request (CIR). When her CIR was returned, it included a reference to the withdrawn assault charge.
“There is currently no legislation which governs what information the police should or must release to employers or volunteer organizations when called on to do so,” says Rose, who represented the Canadian Civil Liberties Association, an intervenor in the case.
J.N. took her case to the Ontario Superior Court, where McDermott ordered Durham Police to expunge the contents of J.N.’s CIR. The police then appealed to the Ontario Court of Appeal, which overturned the decision on narrow grounds, Rose says.
The court, in the decision, said this type of legal proceeding should have been heard in divisional court, and for that reason alone it must be overturned.
“In this case, I argued that the police should be required to tell persons what their CIRs say,” Rose says. “Only in that manner will everyday Canadians who enjoy their constitutional presumption of innocence know what information is being kept by the government.”