Non-Conviction Information – How and Why the Police Can Release it and What you can do

Why It’s Released by Police and How You Can Respond

Did you know the police can release information about you even if no charges have been laid against you?

The short answer is that they can and do release information even when no charge was laid, and no conviction was entered. The police collect and retain information through investigations and when they come in contact with people. They enter this information in various databases. The police have wide discretionary ability to release private information they have collected.

There are several types of record checks where your private information can be released. These record checks include:

• Criminal Record Checks – these checks will disclose criminal convictions. A conviction occurs when a judge makes a finding of guilt. Criminal convictions will be referred to the RCMP and local police via databases such as the Justice Online Information Network (JOIN). Criminal record checks can also include findings of guilt under the Youth Criminal Justice Act during the applicable disclosure period.
  • This means if your current or prospective employer (or volunteer coordinator or any other requesting agency) requires a criminal record check and you have a conviction, it will be disclosed.
• Police Information Check – this is a broader and more comprehensive check. It will include information involving all police history (this may include non-conviction information) vulnerable sector check and a Canada Wide Criminal History check.
  • The results of this check are typically released only to the applicant who would then provide the information to the prospective employer, volunteer coordinator, etc.
  • These checks may vary with information that is released because it will depend on the local police service and the policy and procedures in place.
• Vulnerable Sector Checks – this is an in-depth check that is typically required when the applicant works with or seeking a position of trust or authority over a vulnerable person. Vulnerable persons include children under the age of 18 years and elderly persons.
  • This check will include any information surrounding sexual offences where a conviction was entered even if a pardon or record suspension was later obtained.

A Police Information Check requires a person’s consent before a police service is able to release the information.

• Records of criminal convictions – if you have been convicted of an offence under the Criminal Code or under the Controlled Drugs and Substances Act then these convictions will be disclosed.
• Pending Charges – If you have an outstanding charge, meaning you were charged but your court case is in progress, this information may be disclosed.
• Judicial Order – for example if you have been ordered to comply with a Peace Bond or a Prohibition Order, this may be disclosed.
• Outstanding warrants – issued Canada Wide – may be disclosed.
• Vulnerable Sector Records – will disclose any sexual offence even if you are received a pardon/record suspension.
• Alternative Measures – during the applicable time period.
• Non-conviction interactions with the police if “deemed relevant” – the Alberta CCC FIX Here policy gives police departments wide discretion to release information about you even if no charges were laid.

What is Non-Conviction Information?

This information is collected under police contact and investigations. This information includes:

• Complaints made against you.
• 911 calls connected to you in some way.
• Casual police contact with you.
• Investigation where you have been identified as a witness.
• Relevant occurrences – this may include any interaction you have had with the police. It may be a complaint against you where you were investigated but no charges were laid. It may include mental health welfare checks. It includes any information the police deem relevant to public safety.

Non-conviction information may also include absolute and conditional discharges. The Criminal Records Act sets out the applicable time periods for disclosure of discharges.

What do I do if the police disclose Non-Conviction Information about me?

Each police service has a policy pertaining to disclosure of non-conviction and relevant occurrence information under a police information check. It is important to obtain the policy and follow the steps in requesting removal of this information. You can request the police agency to purge this information or to suppress the information. If they refuse to do so, you can then complain to the civilian oversight agency. If that fails, you can see judicial review in the Court of King’s Bench.

Why is this important and why should I seek a remedy if the police disclose non-conviction information about me?

The presumption of innocence is one of the bedrock principles of our common law. If you are charged with an offence, you are presumed innocent. You are not guilty unless or until a judge makes a finding of guilt. This means that any information the police have collected in the course of an investigation are unproven comments and allegations. If no charge is ever laid against you these unproven comments are nothing more than worthless hearsay.

The impact of disclosing this information to a potential employer or other agency will have an effect on decision making. You may be excluded from a position as a result of this information. Information coming from a police agency indicating you were investigated for a criminal offence is likely to mar you with an unfair stigma. Despite never being charged with a criminal offence and never having the opportunity to make full answer and defence, you can face an invisible form of punishment as a result of this disclosure. The byproduct of this disclosure could lead to lifelong loss of self-esteem and life long community impact.

What do I do if I have been discriminated against due to non-conviction disclosure?

If you have been excluded from a position based on non-conviction disclosure you may launch a complaint to the Alberta Human Rights Commission, if the employer is a provincial employer. If the employer is a federal employer, then you may launch a complaint with the Canadian Human Rights Commission.

Both the federal and provincial human rights codes balance the relationship between you and the employer. Discrimination based on physical or mental disabilities is prohibited. The Canadian Human Rights Act also prohibits discrimination relating to a conviction for which a pardon or record suspension has been granted.

If you have been subjected to non-conviction disclosure by a law enforcement agency and need legal assistance, contact Wyman & Williamson’s criminal lawyers today.