RCMP contravened the Act by using certain types of non-conviction information for vulnerable sector checks without consent
March 29, 2021
Complaints under the Privacy Act (the “Act”)
Three individuals complained about the Royal Canadian Mounted Police’s (“RCMP”) use of non-conviction information in vulnerable sector checks. The complainants had requested the checks in order to apply for jobs or volunteer positions. In two of the complaints, we found that the RCMP contravened section 7 of the Act by using the complainants’ personal information without the complainants’ informed consent. Further, we found that the RCMP’s policy of reporting non-conviction information broadly, including mental health incidents, in vulnerable sector checks was not proportional or minimally intrusive. Following our recommendations, the RCMP agreed to revise its vulnerable sector check consent form and policy to address our concerns.
- The Office of the Privacy Commissioner (“OPC”) received three complaints against the Royal Canadian Mounted Police (“RCMP”) regarding its inclusion of non-conviction information in “Vulnerable Sector” (“VS”) checks conducted at each of the complainants’ request in order to apply for jobs or volunteer positions requiring such a check.
- At issue in the three complaints is that the RCMP indicated on the completed VS check forms that it had located “adverse information” concerning the complainants due to occurrences that did not involve criminal convictions.
- The RCMP’s position was that this use of the complainants’ personal information was done with their consent, pursuant to section 7 of the Act, since the complainants had all completed forms and had requested the RCMP to conduct the checks.
- We determined that in the second of the complaints, the consent form signed by the complainant indicated that the VS check would return charges regardless of disposition – and the complainant had been charged with an offence in the past but not convicted. However, we determined in the first and third of the complaints that the RCMP did not obtain informed consent from the complainants for the use of non-conviction information prior to conducting the VS checks, as the consent forms signed by the complainants suggested that “adverse information” was limited to information about suspects who were charged with an offence – which the complainants had not been. This use of personal information was therefore in contravention of section 7 of the Privacy Act (“the Act”).
- We therefore recommended, to ensure compliance with section 7 of the Act, that within 6 months, the RCMP revise its consent form to clearly specify the types of non-conviction information that it will use and report in a VS check and to also inform applicants of their right to request an independent review of a decision to include non-conviction information.
- However, we are of the view that the Act’s consent requirements do not address the underlying privacy issue raised by the complaints, namely in what circumstances is it appropriate to include non-conviction information in VS checks. All three complainants alleged that the RCMP’s decision to report the non-conviction information on their VS checks effectively barred them from certain volunteer or employment opportunities. While the choice was left to the complainants whether or not to disclose the results, the fact remains that they were required to disclose them in order to be considered for the opportunities they were seeking. Even with improved consent language, applicants have little choice but to accept to undergo VS checks on the terms offered by the RCMP.
- We are of the view that non-conviction information can be relevant to VS checks and can serve a legitimate public purpose in some cases. That said, the wide use of non-conviction information also raises concerns about the presumption of innocence and the stigmatization of mental health issues. The RCMP’s practices and policies differ significantly by province or Division, which, in our view, do not reflect the more proportional practices that have been adopted in provinces such as Alberta and Ontario. We encouraged the RCMP to prioritize this exercise, in conjunction with its provincial partners, so as to ensure that its practices nationwide are consistent as much as possible and to strike an appropriate balance to protect vulnerable Canadians while respecting individual privacy.
- In response to our investigation and recommendations, the RCMP agreed to implement our recommendations to revise its consent form, within 6 months, to provide more specific information about the types of information that will be considered during a VS check and to inform applicants of their right to request an independent review of a decision to include non-conviction information. Additionally, the RCMP committed to implementing a policy of only considering non-conviction information relevant if it meets certain specific criteria for “exceptional disclosure,” similar to Alberta’s procedures and Ontario’s legislation. The policy will also specify that mental health related occurrences should not be considered relevant unless they meet the criteria for exceptional disclosure.
- We therefore consider this matter to be well-founded and conditionally resolved.
- The RCMP offers different types of criminal record checks through its regional detachments depending on the requirements of the prospective employer or volunteer agency that has requested one. Generally, all criminal record checks entail a search of the applicant’s name and date of birth for criminal convictions in the National Repository of Criminal Records, which is accessed via the Canadian Police Information Centre’s (“CPIC”) identification data bank.Footnote 1
- Some employment and volunteer positions may, however, require an enhanced VS check. A VS check goes beyond a criminal record check by searching the National Repository for the existence of any suspended or pardoned sexual offences, in accordance with the Criminal Records ActFootnote 2, and also includes a “local indices check.”Footnote 3 A local indices check serves to identify records found in local police records management systems (“RMS”), including “non-conviction information.”
- Non-conviction information refers to information relating to criminal charges where no conviction was entered or information related to non-criminal interactions with police. Non-conviction information can include mental health apprehensions, 911 calls, informal police contacts, and criminal charges that were withdrawn, stayed, or dismissed. The RCMP’s practice is to identify non-conviction information in the results of the VS check if the contact with police is considered “adverse information” as defined by RCMP policy.
- The three complaints at issue in this report relate to the RCMP’s use of non-conviction information, which the RCMP considered to be adverse information during the course of completing VS checks for each of the complainants.
Complaints under the Act
Complaint 1: PA-035858
- The complainant in this matter applied for a VS check through his local RCMP detachment in Alberta (“K” Division) in [information redacted ] which he required in order to volunteer to coach minor hockey.
- The completed “Release of Results of Vulnerable Sector Check” (6390) form he received from the RCMP indicated that there had been “Adverse Information Located on Police Records Management Systems.” The complainant alleges that the information that the RCMP considered to be adverse was non-criminal and therefore irrelevant for the purposes of the VS check. Consequently, he alleged that the use of this information for the purpose of the VS check was in contravention of the Act.
- The complainant advised that he spoke with a member of the RCMP about the results of the VS check and was informed that three files had been located that were considered to be adverse.
- We reviewed the three files in question, which were classified as follows:
- [information redacted] : Subject of Complaint/Suspect Chargeable – Disturbing the peace/causing a disturbance – Criminal Code Section 175(1).
- [information redacted] : Subject of Complaint – Injure or endanger other animals (not cattle) – Criminal Code Section 445.
- [information redacted] : Suspect Chargeable – Assault – Criminal Code Section 266.
- None of the three complaints resulted in charges against the complainant. The [information redacted] file clearly indicates that it was an unfounded animal cruelty complaint. Additionally, the complainant argues that the files from [information redacted] and [information redacted] are not relevant to the VS check because he was never arrested or charged with an offence.
- The complainant expressed his concerns about the results of the VS check in an email to the RCMP’s ATIP Branch, a copy of which he attached to his complaint to the OPC:
I can’t coach my son’s hockey team or volunteer on any of my sons’ field trips not because I committed a crime but because the RCMP creates the perception of a crime. The RCMP says that failing a Vulnerable Sectors check does not mean that someone has committed a crime. Guess what, your own website states “A VS check is designed to protect vulnerable Canadians from dangerous offenders by uncovering the existence of a criminal record and/or a pardoned sexual offence conviction and is recommended as part of an overall employment or volunteer screening process. The results of the check can help to determine whether an individual is suitable to work in positions where they will be in close contact with vulnerable people.” If I were an employer reading that or a volunteer organization, I would think the person that failed the check is a criminal or worse, sex offender criminal because that is what your website says!Footnote 4
Complaint 2: PA-035900 & PA-036272
- The complainant in this matter applied for a VS check through his local RCMP detachment in BC (“E” Division) in [information redacted]. He required the check for an employment opportunity with a non-profit agency assisting new immigrants to Canada.
- The RCMP indicated in Box 4 of his completed “Consent for Disclosure of Criminal Record Information” (3584) form that relevant information “may or may not exist.”
- According to the complainant, he was wrongly accused of assault in [information redacted]. He was issued a subpoena to attend court, which he did, and the Crown entered a stay of proceeding. The complainant explained this to the RCMP member who conducted the criminal record check, but was advised to contact the RCMP detachment in the jurisdiction where the incident occurred (which was also in BC) in order to make a request to purge the relevant records, which he also did.
- In response to his purge request, the RCMP detachment in the jurisdiction where the alleged assault occurred indicated that all “substantiated” sexual related offences have a retention date of 70 years from the date of occurrence and that as a result his record would not be purged until [information redacted], meaning that it would continue to come up as an adverse entry in any criminal record check.
- In addition to his complaint that the RCMP inappropriately used his personal information with respect to the stayed charge, the complainant also alleges that the RCMP has improperly retained that information for too long.
Complaint 3: PA-048563
- The complainant in this matter applied for a VS check through her local RCMP detachment in Alberta (“K” Division) in [information redacted]. She alleges that non-criminal information about her mental health was inappropriately used by the RCMP when conducting the record check.
- The completed “Release of Results of Vulnerable Sector Check” (6390) form she received from the RCMP indicated that there had been “Adverse Information Located on Police Records Management Systems.” The form included a short description of the occurrences:
- [information redacted]: [The Complainant] is listed as arrested in a mental health complaint. [The Complainant] was taken to hospital and received treatment. No criminal charges.
- [information redacted]: [The Complainant] is listed as emotionally disturbed in a mental health complaint. [The Complainant] was taken to hospital and received treatment. No criminal charges.
- In her letter of complaint to the OPC, the complainant wrote:
There was absolutely no criminal activity that occurred at this time or at any other. The damage that having this information noted on a vulnerable sector check is immeasurable, particularly with the use of words like “arrested” and “emotionally disturbed.” This stigmatizes people further as it reinforces the myth that person’s [sic] with a mental illness are dangerous and violent.
- The complainant stated that as a result of the RCMP’s practices, she ended her career in the human services field as she did not want to revisit these incidents with her employer at the time or with any future employer.
Framework for VS Checks
The RCMP’s policies and practices for VS checks
- The use of criminal record information for the purposes of a VS check is regulated by the Criminal Records Act and the 2010 Ministerial Directive Concerning the Release of Criminal Record Information by the Royal Canadian Mounted Police (the “Ministerial Directive”) issued by the Minister of Public Safety. The Ministerial Directive imposes certain responsibilities and functions onto the RCMP, as the steward of the CPIC system and the National Repository of Criminal Records, relating to the provision of criminal record information to police services across the country, including through a VS check. [information redacted].
- The section of the Ministerial Directive on “Reporting with respect to Criminal Records” imposes upon the RCMP the responsibility to develop and implement procedures with respect to criminal records checks, including VS checks. The Ministerial Directive describes a VS check in the following terms:
2. Vulnerable Sector Verification
This report is primarily intended to assist organizations in screening applicants for positions of authority or trust relative to children or other vulnerable persons.
A Vulnerable Sector Verification is a query of:
- the RCMP National Repository of Criminal Records, including pardoned criminal files associated with sexually based criminal offences;
- Canadian Police Information Centre Intelligence and Investigative databanks, and;
- police service records management systems where the applicant has resided.
- The Ministerial Directive further specifies that the RCMP should put in place procedures for the disclosure of non-conviction information, noting the prejudice that can be caused by the release of such information:
In developing the procedures to permit the promulgation of these reports it must be remembered that improper disclosure of criminal records, or disclosure of records of absolute or conditional discharges under the Criminal Code and/or non-convictions may have an adverse effect upon many aspects of an individual's life….
Policies and practices should be developed to ensure that standards for disclosure and accuracy of these reports and access to criminal records and database information are maintained and that improper use or disclosure of information is not permitted [Emphasis added].
- The RCMP subsequently developed the Dissemination of Criminal Record Information policy (the “Criminal Record Information Policy”),Footnote 5 which governs the use of the CPIC system for police services that conduct criminal record and VS checks. Consistent with the Ministerial Directive, the Criminal Record Information Policy requires that VS checks include a local indices check. However, it notes only that police agencies “may” return a negative response if the query identifies “non-conviction records only and/or youth records only” and flagging criteria for pardoned sexual offences have not been met.Footnote 6 As such, while both the Ministerial Directive and the Criminal Record Information Policy require local indices checks as part of a VS check, neither one specifies how non-conviction information should be used or disclosed.
The RCMP’s policies and practices relating to non-conviction information
- The RCMP has adopted internal policies that direct its members on when to report non-conviction information found during a local indices check as part of a VS checks. In November 2013, the RCMP revised its Operational Manual (“OM”) governing criminal record and VS checks and issued updated criminal record check consent forms at the same time, which are the versions still in use.Footnote 7
- OM 28.5 provides that a VS check includes queries of all available police records management systems and available court records. It states that RCMP members should disclose adverse information about the applicant gleaned from local police records results. “Adverse information” is defined as follows:
Adverse Information means an occurrence in which the applicant is in the Charged or Suspect Chargeable category in a founded and substantiated complaint relating to a provincial or federal offence, regardless of whether they were acquitted or convicted.
- Additionally, OM 28.5 states that RCMP members should “consider disclosing information where the applicant was deemed an emotionally disturbed person where permitted by provincial/territorial statute.”
Relevant provincial guidelines followed by the RCMP
- In addition to its national policy and procedures, the RCMP also follows guidelines and procedures relating to criminal record and VS checks in the provinces in which it provides provincial or municipal policing services under contract. In both BC and Alberta, subsequent to the VS checks at issue in this investigation, police forces have adopted guidelines and procedures relating to the use of non-conviction information in police information and VS checks described below. These guidelines and procedures are now followed by all municipal police services operating in those provinces, including the RCMP’s detachments in those jurisdictions.
- In BC, the issue of municipal police services using non-conviction information, including mental health information, for the purposes of police information checks was the subject of an in-depth investigation by the former Information and Privacy Commissioner of British Columbia (IPC-BC) in her Investigation Report F14-01, “Use of Police Information Checks in British Columbia.”Footnote 8
- One of the IPC-BC’s primary conclusions was that the disclosure of non-conviction information in police information checks bypasses the safeguards present in the criminal justice system to ensure that information gathered by police is accurate such as review by Crown prosecutors, the testing of police evidence in criminal trials, and the presumption of innocence. The IPC-BC also found that certain non-conviction information such as mental health apprehensions is simply not relevant to employers and could lead to discrimination.
- Accordingly, the IPC-BC recommended that the BC government and municipal police boards mandate that police apprehensions collected under the authority of BC’s Mental Health Act should never be included in a police information check. For other types of non-conviction information, the IPC-BC recommended that BC expand the centralized process under its Criminal Records Review Act to cover all VS checks in the province. Under that process, police information checks for publicly funded organizations are carried out by a centralized body and involve a risk assessment to include non-conviction information only where a past conviction or outstanding charge has been found.Footnote 9
- Following the IPC-BC’s report, the BC Ministry of Public Safety and Solicitor General working group issued updated British Columbia Guidelines for Police Information Checks and Model Policy Guidelines (“BC guidelines”).Footnote 10 The guidelines instruct municipal police services in the province not to include information relating to Mental Health Act apprehensions or suicide threats or attempts where there was no harm or threat to others in response to police information checks, including VS checks.
- Under the BC guidelines, certain other types of non-conviction information may still be used for the purposes of a police information check, including withdrawn or dismissed charges, information revealing that the applicant was a suspect in an offence (whether or not charged), and adverse contact involving the threat or actual use of violence directed at other individuals and oneself that places others at risk regardless of, but without disclosing, mental health status (e.g., uttering threats, assault, etc.).
- Police Services in Alberta follow the Alberta Association of Chiefs of Police (“AACP”) Police Information Check Disclosure Procedures (“the AACP Procedures”).Footnote 11 The current version of the procedures has been in effect since June 2019.
- The AACP procedures are more restrictive than those in BC with respect to the use of non-conviction information for police information checks, including VS checks. According to the AACP, the procedures are the result of a collaborative effort between Alberta Police Services “to ensure that information disclosed in Police Information Checks provides balance between preserving public safety and protecting the privacy and human rights of Police Information Check applicants.” To that end, the AACP Procedures explain:
Alberta Police Services recognize that not all persons who have been charged with a criminal offence(s) are found guilty of those offences and that under law they are considered innocent until proven guilty. While normally non-conviction records will not be disclosed, it is recognized that occasions exist where the disclosure of such information relating to non-convictions may be required. In addition, police services in Alberta recognize the sensitivity related to the disclosure of mental health related occurrences. But again, some measure of disclosure may be required in exceptional circumstances.
- The AACP Procedures go on to provide the following test for the reporting of non-conviction information, including mental heath related occurrences, for police information checks in Alberta, which is based on both recency and relevancy criteria:
Non-conviction police information should not be disclosed … absent exceptional circumstances. In order for an exception to apply, the non-conviction information must be directly relevant to the position being sought by the applicant. In making that determination, the following factors should be considered:
- The nature and responsibilities of the position
- The individuals with whom the applicant will be interacting (i.e., vulnerable sector)
- The frequency and recency of the occurrences:
- 10 years for sexual and violent related occurrences
- 5 years for all non-violent occurrences where there exists a demonstrated pattern of behaviour involving the same category of individuals with whom the applicant would be interacting
- Any demonstrated pattern of behaviour resulting in a substantial risk to those with whom the applicant would be interacting
- The reliability of the information contained within the non-conviction records
- With respect to mental health-related occurrences, the AACP Procedures state that “Such occurrences will be disclosed based upon the demonstrated behaviour and/or implied level of violence towards others and not the existence of a mental health disorder” and that “Occurrences, including attempted suicides not involving any act or threat of violence towards others, shall not be disclosed.”
- The AACP Procedures also provide that information about stayed proceedings will be only disclosed if the proceedings were stayed within one year from the check. Dismissed and withdrawn charges will only be disclosed if they meet the recency and relevancy criteria outlined above.
- Ontario has gone even further than Alberta and BC, by moving to restrict the release of non-conviction information in VS checks through the passage of the Police Record Checks Reform Act.Footnote 12 Although the RCMP does not provide contract policing services in that province, Ontario’s reforms are a further indication of a move away from broad disclosure of non-conviction information. Section 10 of the Police Record Checks Reform Act prohibits the use of non-conviction information for the purposes of a VS check unless certain criteria are met. The criteria are based on the seriousness and nature of the offence and whether there is evidence of a risk of harm to a child or vulnerable person. Accordingly, subsection 10(2) of that Act sets out the all elements of the following test must be met before reporting non-conviction information for the purposes of a VS check:
- The criminal charge to which the information relates is for an offence specified in the regulations …
- The alleged victim was a child or a vulnerable person.
- After reviewing entries in respect of the individual, the police record check provider has reasonable grounds to believe that the individual has been engaged in a pattern of predation indicating that the individual presents a risk of harm to a child or a vulnerable person, having regard to the following:
- Whether the individual appears to have targeted a child or a vulnerable person.
- Whether the individual’s behaviour was repeated and was directed to more than one child or vulnerable person.
- When the incident or behaviour occurred.
- The number of incidents.
- The reason the incident or behaviour did not lead to a conviction.
- Any other prescribed considerations.
- We note that the specified offences found in the Regulations to that Act are all very serious criminal offences.Footnote 13
Issue 1: Was the use of non-conviction information by the RCMP for the purposes of VS checks done with the complainants’ consent consistent with the requirements set out in section 7 of the Act?
- Section 7 of the Act states that personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose or for a purpose for which the information may be disclosed to the institution under subsection 8(2) of the Act.
- It is clear that non-conviction information in local police databases or RMS’ is personal information within the meaning of the Act. The RCMP’s position is that in all three cases, its use of that personal information was consistent with section 7 of the Act in that all three complainants consented to the VS checks, including local indices checks, when they submitted their signed “Consent for Disclosure of Criminal Record Information” (3584) (Complaint 2) or “Consent for Release of Police Information” (6388) forms (Complaints 1 and 3).Footnote 14 [information redacted].
- The RCMP explained that as per OM 28.5, the results of a VS check should only be provided to the consenting applicant. The results may only be disclosed to a third party (e.g., potential employer) if the applicant has provided written consent. If the results of the check indicate the existence of adverse information, the applicant must verify the information in person before it can be disclosed to the third party. At this point, an applicant can choose to revoke their consent rather than having the results disclosed to the third party.
- We are of the view that in order for consent to be valid under section 7, it must be informed. In other words, the applicants must have a reasonable understanding of what they are consenting to before the RCMP can use their personal information for the purposes of the requested check or to disclose the results.
- In our view, the RCMP has established that consent was obtained from Complainant 2. The 3584 form at issue in Complaint 2, which is no longer used by the RCMP, provided a brief “Waiver and Release” and consent statement. The level of check to which the complainant consented described the information to be used as “Police information located on computer systems … and information located through local police indices checks. This will include all information related to … all charges regardless of disposition.” In Complainant 2’s case, the form therefore made clear that all charges regardless of disposition would be returned in a VS check.
- In contrast, the 6388 consent form at issue in Complaints 1 and 3, which is currently used by the RCMP in all Divisions, did not clearly inform the complainants that their interactions with the police would be considered “adverse information.”
- While the form specifies in the “Statement of Consent” that “non-conviction information” will be searched, a supplementary information sheet accompanying the form states that “non-criminal entries” will be included in a VS check if they reveal “adverse information,” which the sheet defines as “as an occurrence in which the applicant is the subject of a founded and substantiated complaint relating to a provincial or federal offence: a bona fide suspect, charged with a provincial or federal offence whether acquitted or convicted” [Emphasis added].
- We note that this definition is narrower than the definition of “adverse information” in the RCMP’s OM 28.5 and that it does not refer to “emotionally disturbed” persons.
- In the case of Complainants 1 and 3, neither was charged with an offence. Complainant 3 in particular was not even suspected of an offence but instead interacted with police in the context of a mental health incident. On a plain reading of the wording of the form, it would not have been obvious to Complainants 1 and 3 that they were giving consent for the RCMP to look through and report their previous interactions with police as adverse information. We therefore are of the view that Complainants 1 and 3’s consent was not validly obtained.
- This conclusion is supported by the Alberta Court of Queen’s Bench decision in Edmonton (Police Service) v Alberta (Information and Privacy Commissioner), 2019 ABQB 587.Footnote 15
- At issue in that case was the Edmonton Police Service’s (“EPS”) consent form for a VS check, which at the time referred broadly to a search of “police files.” With respect to the issue of consent, Graesser J. upheld the original decision of the Information and Privacy Commissioner of Alberta’s Adjudicator, who decided that such language was too vague to provide informed consent.Footnote 16 In particular, Graesser J. noted:
 EPS suggests that an applicant requesting a [police information check] or [VS check] has given virtually unlimited scope to it to include whatever information they possess, however they may have collected it, however old it might be and for whatever reason they collected it, because the Consent Form says “police files.”
 Having regard to the interpretation placed on that by EPS, it is my view that no individual would intuitively understand that “police files” would include information about unsubstantiated complaints to the police, matters that have been investigated by police for which no action was taken, or matters where charges were laid but the accused was acquitted.
 EPS says that all they are doing is providing the applicant with the information it has on the applicant. It is then up to the applicant what he or she does with that information. That might be so in the case of someone who is simply curious to see what the police may have on him or her. But in the context of a [police information check] request, the applicant must identify why he or she wants the search. For a [VS check], it is obvious that a search is being required for volunteer or employment purposes, whether it be to obtain a job in the vulnerable sector or to keep a job in the vulnerable sector. EPS knows what use is intended to be made of the search, and that negative results on the search will most likely have negative results on the applicant.
- In addition, we note that the forms in use by the RCMP are not clear on what recourse individuals have in the event they dispute the results of their VS check. The RCMP’s OM 28.5 states that the Detachment Commander/Supervisor should “Review the findings of the criminal record if an applicant disagrees with, or disputes the results of, any criminal history/records check. Determine the accuracy of the information and advise the applicant of your decision.” However, the forms do not provide information to applicants with respect to this opportunity for redress should they wish to contest the information that has been provided in response to a VS check.
- Based on the foregoing, we make the following findings with respect to whether the requirements of section 7 of the Act were contravened in the three complaints at issue:
- Complaint 1 (PA-035858) is well-founded.
- Complaint 2 (PA-035900 and PA-036272) is not well-founded.
- Complaint 3 (PA-048563) is well-founded.
- Having come to these conclusions with respect to compliance with section 7 of the Act, we recommended, to ensure compliance with section 7 of the Act, that within 6 months, the RCMP revise the consent forms for VS checks so that they clearly set out the types of non-conviction information that are returned or not returned in a VS-check.Footnote 17 We suggested that this information should also inform applicants of their right to request an independent review of a decision to include non-conviction information.
- The RCMP agreed to implement these recommendations within 6 months. We therefore now consider Complaints 1 and 3 to be well-founded and conditionally resolved.
Issue 2: Should the RCMP amend its policies with respect to the use of non-conviction information in VS checks and, if so, what considerations are relevant?
- We note that in the Alberta Court of Queen’s Bench decision cited above Graesser J. also concluded that while the a police service may amend its forms to ensure it is obtaining meaningful consent in accordance with the law, this does not resolve the problem posed by the use of non-conviction information since the police service is effectively able to dictate the terms on which a VS check is provided and individuals who wish to obtain a volunteer or employment opportunity have little choice but to accept.
- The IPC-BC expressed a similar concern in her 2014 report regarding consent for police information checks in BC:
In the vast majority of instances where an individual is requesting a police information check, he or she is requesting that information only because a prospective employer or volunteer organization requires it as part of an application process. I am concerned that although the individual has apparently consented to the use of his or her personal information in this way, the privacy harms associated with a change in use have not been mitigated. Nor, in most cases, will the individual have freely provided his or her consent. If they need or want a job, they have little choice but to consent. As a result, an individual will consent to broad information disclosures in many instances that are beyond what is reasonably necessary for the purpose. As discussed above, police agencies include information in police information checks that, while relevant to law enforcement and clearly important for a police officer to have access to, would likely not be useful or appropriate in the employment context.
- We likewise see potential concerns in this regard and therefore offer below further considerations for the RCMP on this matter.
- VS checks serve an important public purpose by helping ensure that individuals are appropriately screened prior to working with vulnerable populations. However, non-conviction information can include sensitive personal information that can have a significant negative impact on individuals. Because VS checks are required for certain volunteer or employment opportunities, reporting that there is adverse information in response to a VS check could make it difficult if not impossible for an individual to pursue the employment or volunteer opportunity.
- While not a legal requirement under the Act, an important issue therefore is whether the RCMP’s current practices with respect to the use of non-conviction information strike an appropriate balance. We believe that this can helpfully be assessed through the concepts of necessity, effectiveness, proportionality and minimal intrusiveness.Footnote 18
- We accept that in some cases non-conviction information may be relevant and recent enough to merit disclosure to a potential employer or volunteer organization. Non-conviction information can, in certain circumstances, be effective in meeting the important need of conducting an assessment of risk of an individual working with vulnerable persons. This may include instances in which an individual was accused of, or charged with, a violent or sexual offence relating to a vulnerable person but was never convicted.
- Nevertheless, we are not convinced that the loss of privacy entailed by the RCMP’s current policy, reflected in its OM, of reporting “adverse information”, including mental health incidents, in VS checks is proportional or minimally intrusive. We note in this regard that the RCMP’s policies and practices as describe in its OM go further in including non-conviction information in VS checks than the provincial models described above.
- When non-conviction information is used for a purpose other than the initial law enforcement purpose for which it was gathered, namely producing a VS check reporting “adverse information,” it can lead to concerns around accuracy and the presumption of innocence. On this point, we note that the IPC-BC stated in her 2014 report:
In disclosing the results of a police information check in this way, police agencies are taking personal information that was originally collected for law enforcement and changing its use to employment-related decisions for private or public sector employers. This change in use removes safeguards provided by the criminal justice system and leaves the individual the information is about without any recourse to challenge the accuracy of the information.
- In our view, it is not proportional for the RCMP to treat incidents where police have acted as a first responder to a mental health emergency or when they have investigated a complaint as “adverse” information that must be disclosed to an employer or a volunteer organization, regardless of the context of those interactions. As noted by the IPC-BC, the Alberta Court of Queen’s Bench, and others,Footnote 19 disclosing information that has not been tested in a criminal proceeding raises concerns around the presumption of innocence guaranteed by the Charter and has the potential to cause serious harm to individuals. Where no criminal trial has occurred, individuals have little means to challenge the accuracy of the information in police files.
- Moreover, with respect to less privacy-intrusive means, we need only point to the AACP’s Procedures or Ontario’s Police Record Checks Reform Act, which provide more tailored tests for determining when non-conviction information should be used and reported based on the relevance and recency of the information. These regimes provide concrete guidance to strike a balance between respect for the privacy of applicants, while at the same time, achieving the stated purpose of identifying information that could indicate a risk to vulnerable persons.
- We note that the RCMP indicated that it follows the revised AACP Procedures and BC guidelines when conducting VS checks in those provinces, even though these are more restrictive than the procedures in OM 28.5. This is a welcome development and would presumably lead to different results for Complaints 1 and 3 were they to seek a VS check today.Footnote 20
- More specifically, with respect to Complaint 3, the complainant was deemed by the RCMP to be an “emotionally disturbed person” as per the instructions set out in OM 28.5. We note that the AACP Procedures now expressly prohibit mental health occurrences, including attempted suicides not involving any act or threat of violence towards others, from being disclosed.Footnote 21
- With respect to Complaint 1, the RCMP advised that it would no longer consider the [information redacted] and [information redacted] files to be relevant to the VS check as a result of the AACP Procedures, but that it would require additional information in order to assess whether the [information redacted] file in which the complainant was considered “suspect chargeable” in an assault complaint indicates any sort of risk to individuals with whom he would have contact in the volunteer position he was seeking.
- While the RCMP’s practices for VS checks in Alberta and BC have improved, we note that its practices across the country are not consistent and for many provinces, the more widespread use of non-conviction information permitted by OM 28.5 continues to apply.
- Furthermore, there are also notable differences of substance between the procedures that apply under the BC guidelines and the AACP Procedures. For instance, the practice of disclosing stayed charges in a VS check in general appears to be consistent with the current guidelines in BC but it is at odds with the procedures in Alberta, where stayed charges are not released in a VS check after 1 year. The practice in BC is also at odds with Ontario’s more restrictive rules for releasing non-conviction information.
- We are not convinced these discrepancies in the RCMP’s practices make sense, particularly given the harm that can be caused by the release of non-conviction information in a VS check and the fact that other provinces restrict the release of the same information.
- Absent a legislative framework, such as that adopted in Ontario, our view is that the RCMP’s procedures for all provinces and territories should reflect a better balance between the harms that can be caused by the use of non-conviction information in VS checks and the public interest in VS checks – based on relevant and accurate information. The AACP Procedures, which the RCMP says that it now follows and which resemble the legislative reforms in Ontario, more closely achieve this, but those procedures are restricted to Alberta.
- Given the above, we encouraged the RCMP to prioritize this exercise, in conjunction with its provincial partners, to ensure its practices nationwide are as consistent as possible and strike an appropriate balance to protect vulnerable Canadians while respecting individual privacy – such as by including non-conviction information only when relevancy and recency criteria have been met, as is the case for police services operating in Alberta and Ontario.
- In response, the RCMP committed to changing the policy set out in OM 28.5 so that non-conviction information will only be considered relevant if it meets certain specific criteria for “exceptional disclosure,” similar to Alberta’s procedures and Ontario’s legislation. Moreover, the updated policy will specify that information relating to mental health occurrences never be disclosed unless they meet the criteria for exceptional disclosure.
Issue 3: Did the RCMP contravene the Act by retaining Complainant 2’s personal information?
- The complainant in Complaint 2 also specifically alleged that the RCMP’s record retention practices violate the Act by retaining information about his stayed charge too long. The RCMP currently has a 20 year retention of records relating to sexual assault investigations and 70 years where the complaint is considered to be substantiated (e.g., charges sworn or laid).
- Subsection 6(1) of the Act states that “Personal information that has been used by a government institution for an administrative purpose shall be retained by the institution for such period of time after it is so used as may be prescribed by regulation in order to ensure that the individual to whom it relates has a reasonable opportunity to obtain access to the information.”
- Subsection 4(1) of the Privacy Regulations (the “Regulations”)Footnote 22 provides the following clarification with respect to subsection 6(1) of the Act:
Personal information concerning an individual that has been used by a government institution for an administrative purpose shall be retained by the institution
- for at least two years following the last time the personal information was used for an administrative purpose unless the individual consents to its disposal; and
- where a request for access to the information has been received, until such time as the individual has had the opportunity to exercise all his rights under the Act.
- Neither the Act nor the related Regulations stipulate maximum retention periods for any records that are subject to the Act. That being the case, we are of the view that the RCMP’s record retention practices comply with requirement in the Regulations that they be kept for at least two years following the last time the personal information was used for an administrative purpose.
- Paragraph 4(1)(a) of the Regulations provides that information can be disposed of with the consent of the individual to whom it pertains. We note that the RCMP has a formal process in place by which individuals can request the destruction of non-conviction records, but it is ultimately up to the discretion of the RCMP to determine whether such a request will be honoured.Footnote 23
- We therefore find the retention allegation by the second complainant not well-founded.
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