No charges, no trial, but presumed guilty

In February, the Ontario Association of Chiefs of Police proposed new guidelines advising forces “against disclosure of non-conviction records” with a “narrow public safety exception” for cases where disclosure would protect vulnerable people.

It is unclear how broadly the guidelines will be adopted by forces across the province that already have widely varying practices.

The real solution, according to both the CCLA and the John Howard Society, is clear legislation that prohibits disclosure of non-conviction records. They also suggest placing decisions around the most revealing kind of background checks — those issued to people seeking to work with vulnerable Canadians — in the hands of trained and impartial professionals who would be governed by provincial legislation that includes clear privacy and human rights protections.

Gordon Sinclair’s experience illustrates how an individual’s life can be derailed by a “vulnerable records check.”

In August, 1991, when Sinclair was working as a part-time clerk in the now-defunct Dragon Lady Comics store, then on Queen Street in Toronto, police arrived one August afternoon and gathered comics they deemed to be obscene.

They seized dozens of copies of Melody, a comic book about an exotic dancer.

Produced in Quebec with financial support from the provincial government, the comic, tame by contemporary standards, raised eyebrows at the time and triggered police action.

Sinclair, then 27, was charged with 33 counts of possession of obscene material for the purpose of selling. The charges — one for each copy of the comic seized — were laid against every staff member at the store, he says.

“We didn’t think much of it because we knew there was nothing to the allegations,” says Sinclair. “It was nothing nearly as bad as Hustler (magazine).”

The charges were soon withdrawn and Sinclair thought no more of it — until he applied for a police background check that would allow him to take training placements at a nursing home or hospital, a required part of his George Brown course requirements.

The check came back with the long-since-tossed charges listed.

“I was a bit shocked,” he says. “I went to the dean of nursing and explained the situation. She said I couldn’t do any clinical work and said, ‘We have to remain neutral.’ ”

He was given two choices: Either try to convince prospective employers to accept him for a practicum — and receive a fail grade in the likely event he was unsuccessful — or withdraw.

Sinclair withdrew, believing he could re-enter the program with a clean record.

In March, 2011, after an appeal to Toronto Police, Sinclair received a letter indicating his request for suppression of the charges had been granted.

Sinclair tried to re-enter his program at George Brown but was denied.

He appealed to the college’s president but it had no effect, despite a letter from his former comic store boss, John Biernat, saying, “It is extremely disturbing to me, as the owner of the store and the person in charge of choosing which materials were imported and offered for sale, that (Sinclair) has been expelled from the George Brown Nursing Program ... I appreciate that the safety of vulnerable persons is of paramount importance, but I sincerely feel that there are no grounds here for supposing Mr. Sinclair would pose any risk to patients.”

In a letter sent to college officials in March, 2011, Sinclair wrote: “It seems odd that George Brown seems resolved in punishing me like I was guilty when the police themselves cleared me.”

Citing privacy reasons, Deana Lunn, chair of George Brown’s practical nursing program, whom Sinclair dealt with, declined in an interview to speak about his case. But she did speak generally about the challenge of “unclear” student police checks.

The school’s privacy policies prevent them from probing the specifics of what appears on police checks.

“There’s no wiggle room,” she says. “We have to follow the rules like everybody else.”

She says students forced to withdraw in order to clear their police checks can return to the program, but they must apply from scratch and be subject to admission decisions.

Lunn says cases such as Sinclair’s occur two or three times a year.

“It’s a difficult thing, there’s no question,” she says. “I can appreciate and empathize ... But it is beyond our boundaries to have any discussion with a student about it or even give advice. We merely state these are the options around the academic pathway.”

Sinclair’s story is one of many.

“Our research results revealed various incidents where students finishing teacher’s college or social work school were shocked to find out they would not qualify for placements and were, therefore, unable to graduate,” reads a recently completed study by University of Toronto sociologists Kelly Hannah-Moffat and Paula Maurutto.

The authors conclude the disclosure of non-conviction records are as damaging to individuals as having an actual criminal record and that the release “violates constitutional and, in particular, due process rights.”

“These are unproven accusations that might not be true,” said Hannah-Moffat in an interview. “It can pull people back into the system by making them unemployable and creating a social stigma. You have to ask what the bigger consequence is of that behaviour.”

For the study, the researchers interviewed one man who had been sent to hospital by his parents after threatening suicide as a young man. While he quickly recovered and moved on, the incident cast a long shadow when he applied for a position with the military and found his medical history documented on his background check.

“Examples such as these raise increasing concerns regarding the barriers to seeking emergency medical assistance for fear of the lifelong effects of disclosure of police contact information,” the study concludes.

Last month, B.C.’s Information and Privacy Commissioner Elizabeth Denham investigated the issue of non-conviction disclosures in a report she described as “one of the most important investigation reports, if not the most important” she has ever written.

It calls on authorities to strike a fairer balance between an individual’s right to privacy and an employer’s right to obtain relevant background information on potential employees with “clear and enforceable” legislation.

Brian Beamish, assistant commissioner of Ontario’s Office of the Information and Privacy Commissioner, would like to see similar reforms here.

“There is a need to exercise caution when law enforcement is in the position of making these decisions,” he says. “There’s a large body of jobs, schooling opportunities and volunteer positions where that information is not relevant.”

Sinclair had to hire a lawyer to recover the $2,600 in tuition he paid to George Brown College.

“The legal fees ate up most of what I got back so it didn’t mean much,” he says.

He applied to Ryerson’s nursing program, but was not admitted.

Today, he’s living on his savings and doing renovation work on a Parkdale home he says he’ll likely have to sell.

“I just have to take what I can get in terms of jobs. I’ll never have a real career now. Nursing was my last chance. I’m finished.”