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Ontario Court of Appeal Ruling Affects Domestic Assault Cases

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The Ontario Court of Appeal released it decision in J.N. v. The Durham Regional Police Service (2012 ONCA 428) on June 21, 2012. That decision overturned a lower court ruling (2011 ONSC 2892) which had ordered the Durham Police to expunge its records of information which affected JN’s employment prospects.

JN had been arrested for domestic assault, but the Crown had properly decided at an early stage that there was nothing to the charge and withdrew it in Court. Having no criminal record, JN then wanted to work with school boards, which are considered “vulnerable sector” employers requiring a police records check. The Durham Police told her that they would disclose in any Criminal Information Request (CIR) that she had been charged with assault and the charge had been withdrawn. JN tried to have the police reverse that decision by sending them written submissions pleading her case. It was to no avail. The police insisted that they would tell prospective employers about the withdrawn charge.

JN took her case to the Ontario Superior Court, where Justice McDermot ordered Durham Police to expunge the contents of JN’s CIR. The police then appealed to the Ontario Court of Appeal, who overturned that decision on narrow grounds. Justice McDermot, they said, shouldn’t have heard the case because this type of legal proceeding should have been heard in the Divisional Court. For that reason alone, the decision must be overturned. As the Court of Appeal said, “Some may view this approach as technical and as a failure by this Court to address what are admittedly important issues”. True enough.

The problem raised here is that tens of thousands of Canadians have their assault charges withdrawn every year. Each one of them risks having their employment prospects weakened merely because they were charged at all. 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. I represented the Canadian Civil Liberties Association in this case, and I argued that the police should be required to tell persons what their CIRs say. Only in that manner will everyday Canadians who enjoy their Constitutional presumption of innocence know what information is being kept by the government. The police should be forced to justify to those persons what information they would divulge and the reasons why. Those persons 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. That way innocent persons privacy interests can be properly protected.

Regrettably, the Court of Appeal ruling in JN v. DRPS has left the argument for another day, and another Court.

David Rose
Neuberger & Partners LLP

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