Criminal Law

Gadhia: destroy non-conviction police records

The police practice of retaining records associated with an investigation that didn't result in a criminal conviction or no charges at all is wrong and must be stopped, says Toronto criminal lawyer Roots Gadhia.


"Individuals have a right not to be encumbered by any criminal matter where charges have been withdrawn or for which they've been acquitted," she tells AdvocateDaily.com.


"The problem with it is that businesses conduct vulnerable-sector checks on people and their lives, their livelihood and their ability to find employment is completely derailed when a file pops up. And these are files for which there's no basis for police to maintain."


Gadhia also notes that the practice is contrary to the Court of Appeal decision in R. v. Dore 2002 CanLII 45006 (ON CA).


She weighs in as she continues to pursue the issue on behalf of clients who want police to destroy files, including fingerprints, pictures and arrest records, that were generated during an investigation but the accused was never convicted of a crime.


Earlier this year, the Toronto Star reported that the routine release of police data on people who haven't been convicted of anything is undermining the careers, volunteer work and travel to the United States for thousands of innocent Canadians. The newspaper's investigation of police record disclosures revealed how the release of such data – including unproven allegations, withdrawn charges, police surveillance notes and mental health calls – is causing major problems for many across the country.


Meanwhile, the Toronto Police Services Board is researching the policies of other police forces in an effort to develop best practices and to seek clarification from the federal government on how Canadians' information is shared with the U.S., says the article.


Gadhia says that for police to have that kind of information on individuals who haven't been convicted of a crime is "completely inappropriate."


In cases where there has been an acquittal, stayed charges or no charges laid at all lawyers will, on behalf of their client, make application to the investigating police service to have the records destroyed, she says.


"The letter goes in and the police usually respond back with, 'This is a primary designated offence so we're not actually getting rid of this,'" she says. "Police will say that counsel has 60 days to request a review of the decision, so then we send another letter out.


"In the second letter we quote R. v. Dore, that says police aren't allowed to retain these items and that they have to destroy them."


Gadhia notes clients often wait months – sometimes up to a year – to hear back from police.


"That has always been the case until recently when I got a letter back for a client who had been requesting fingerprint destruction," she says. "The letter stated police will destroy the photographs and fingerprints, but will be retaining the record of arrest as an intelligence file pursuant to the City of Toronto Municipal Code, Chapter 219, Article 1."


In this case, police will hold onto the record of arrest, which contains his name, address, date of birth, visual appearance at the time of arrest, the officers who arrested him, where he was arrested and the charge he was arrested for, she says.


Gadhia says it's concerning that this is happening in cases where individuals haven't been convicted of any crime or where charges have been withdrawn.


"The courts have mandated that police have an obligation to destroy records," she says. "For police to instead create categories of retention policies on their own or to surreptitiously hide these policies through duplicitous language in a municipal bi-law flies in the face of the freedoms and rights that the courts have conferred post litigation."


To Read More Roots Gadhia Posts Click Here