OFF THE RECORD: A CRITICAL ANALYSIS OF YOUTH RECORD DISCLOSURE PRACTICES.

• Author: van Wiltenburg, Chantelle
• Position: Canada

I INTRODUCTION 31 II THE RELATIONSHIP BETWEEN POLICE RECORD CHECKS, CRIMINAL RECORD CHECKS, AND THE YCJA 32 A. Criminal and Police Record Checks 32 B. Youth Records under the YCJA 34 III THE FRAMEWORK OF THE YCJA 34 A. Overarching Purpose of the YCJA 33 B. Statutory Scheme 37 IV CONTEMPORARY CRIMINAL RECORD DISCLOSURE PRACTICES 39 A. Consent may be Deficient 42 B. Current Practices Facilitate Contravention of the YCJA's Privacy Provisions 46 C. Current Practices Are Contrary to the Spirit of the YCJA 51 V SUGGESTIONS FOR REFORM 55 VI CONCLUSION 62 A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was. Joseph Hall I INTRODUCTION (1)

Obtaining summer employment; taking a day-trip to Buffalo, New York; securing an apartment; majoring in theatre studies. (2) What do all of these undertakings have in common? Each of these goals may be more difficult for an individual to achieve if he or she has been found guilty of a criminal offence under the Youth Criminal Justice Act ("YCJA"). (3)

In an age of rapid technological advancement, third party requests for police record checks have proliferated. Today, it is not uncommon for employers, landlords, volunteer organizations, and even post-secondary institutions to request that an individual obtain a police record check as part of their application process. In the eyes of a decision-maker, a young person may become a less suitable candidate by virtue of his or her youth criminal history. As a result of contemporary disclosure practices, an individual may face lasting barriers to opportunities long after his or her involvement with the youth criminal justice system has ended. Is this practice justifiable under Canadian law?

In Ontario, the permissibility of disclosing police records to third parties is a subject of heated debate. On the one hand, proponents of police record checks contend that third party access to these records serves valuable social function: shielding the recipient organizations from liability, promoting the safety of the public, and protecting vulnerable persons. On the other hand, opponents argue that the request and utilization of these records is discriminatory; moreover, it contributes to recidivism and undermines the process of rehabilitation. (4) In an effort to address these concerns, the Ontario provincial government recently enacted the Police Record Checks Reform Act, 2015 ("PRCRA") to standardize and restrict the information that may be disclosed on police record checks. (5) Nonetheless, debates surrounding these issues continue. (6)

Despite the widespread attention surrounding police record disclosure, little research has been done to examine the unique issues that disclosure presents in the youth criminal justice context. This paper critically evaluates the legitimacy of contemporary disclosure practices and the impact of these practices on two critical areas of a young person's life: housing and employment. It proceeds in five parts. Part I clarifies the relationship between police record checks and the YCJA. Part II outlines the purpose and statutory scheme of the YCJA. Part III considers the legitimacy and effects of disclosing youth record information to employers and landlords. Part IV outlines suggestions for reform. In broad strokes, this paper argues that police services should not facilitate third party youth record disclosure for several reasons: first, a young person's consent may not be construed as meaningful; second, the third-party uses to which these records will be put often contravene the privacy provisions of the YCJA; and third, current disclosure practices undermine the YCJA's broader aims of privacy protection and rehabilitation of young persons. To conclude, this paper explores how legislative reform can help to promote disclosure practices that complement, rather than undermine, the YCJA's fundamental values of privacy protection, rehabilitation, and reintegration.

II THE RELATIONSHIP BETWEEN POLICE RECORD CHECKS, CRIMINAL RECORD CHECKS, AND THE YCJA

Before analyzing the legitimacy of current criminal record disclosure practices under the YCJA, it is important to clarify the relationship between police record checks, criminal record checks, and the YCJA.

1. CRIMINAL AND POLICE RECORD CHECKS

   A criminal record check is a type of police record check. The legislative scheme governing police record checks is complex. Policies relating to the retention and disclosure of these records are dictated by several overlapping pieces of provincial and federal legislation. To complicate matters, the terminology used to describe the different kinds of police record checks and the information these checks disclose often varies by jurisdiction. In recent years, the inconsistent policies governing police record check disclosure have attracted criticism. (7) In response, some provincial governments, including Ontario's, have developed provincial legislation to provide more clarity and consistency to disclosure policies. (8)

   Generally speaking, local police stations conduct three types of police record checks. (9) Ontario's PRCRA, which has yet to come into force, (10) refers to these levels as follows: (1) criminal record check; (2) criminal record and judicial matters check; and (3) vulnerable sector check. (11) The informational content of each type of police record check is set out in the PRCRA's Schedule, as adopted by section 9. (12) The scope of information disclosed varies depending on the type of police record check conducted.

   In Ontario, third parties, such as employers and landlords, generally request that applicants provide the third party with a criminal record check (level one of the PRCRA, above). Pursuant to section 9, this check includes findings of guilt under the YCJA within the prescribed access period, and adult criminal convictions for which a pardon has not been granted. (13) A criminal record and judicial matters check (level two) discloses a wider range of information, including certain court orders against the individual, conditional and absolute discharges (within specified time periods), and outstanding warrants. (14) Finally, vulnerable sector checks (level three) disclose the widest range of information, including certain charges where the individual was found not criminally responsible on account of mental disorder, (15) and additional non-conviction information that meets the requirements for "exceptional disclosure". (16)

   Critically, according to section 9 and the accompanying Schedule of the PRCRA, all three levels of police record checks include findings of guilt under the YCJA within their prescribed access periods. (17) The inclusion of this information within a police record check activates the YCJA's privacy protection provisions.

2. YOUTH RECORDS UNDER THE YCJA

   Records that fall within the purview of the YCJA are often referred to collectively as "youth records". Section 2 of the YCJA defines the term "record" very broadly. It includes "any thing containing information... that is created or kept for the purposes of this Act or for the investigation of an offence that is or could be prosecuted under this Act." (18) There are three main types of youth records that are contemplated by the YCJA: (1) youth court records; (2) government records; and (3) police records. (19) Under the YCJA, a "police record" is defined by section 115(1) as "[a] record relating to any offence alleged to have been committed by a young person, including... fingerprints or photographs". (20) For simplicity, this third subtype of youth record shall be referred to in the subsequent discussion as "youth records". This paper restricts its analysis to the practice of disclosing information contained in a youth record during a criminal record check.

   III THE FRAMEWORK OF THE YCJA

   Criminal record checks generally include particular youth records and adult police records. However, unlike adult police record disclosure, which is governed on a federal level by the Criminal Records Act and the Privacy Act, the disclosure of youth records is dictated by the YCJA's independent and distinct statutory scheme. (21) As a result, disclosure practices that are sanctioned by adult police record legislation may nonetheless be prohibited under the YCJA. It is therefore critical that youth records are not treated as synonymous with their adult counterparts. Criminal record check practices must disclose information related to youth offences in compliance with the YCJA's broader purpose and specific privacy protection scheme, as set out below.

1. OVERARCHING PURPOSE OF THE YCJA

   One of the central aims of the YCJA is the protection of the public from crime through the rehabilitation of young persons. (22) The privacy rights of young persons are understood in Canadian law as being essential to their rehabilitation. As stated by Binnie J in FN (Re):

   Stigmatization or premature "labelling" of a young offender still in his or her formative years is well understood as a problem in the juvenile justice system. A young person once stigmatized as a lawbreaker may, unless given help and redirection, render the stigma a self-fulfilling prophecy. (23) This concern to avoid labelling and stigmatization of young persons has been deemed "essential to an understanding of why the protection of privacy is such an important value in the [YCJA]." (24) This does not mean, however, that the YCJA's privacy rights are simply an instrumental tool to prevent stigmatization. A young person's privacy rights have also taken on constitutional significance in the jurisprudence, as they implicate a young person's right to liberty and security under the Canadian Charter of Rights and Freedoms. (25) In addition, the YCJA's privacy protections are understood as a means of recognizing a young person's presumption of diminished moral culpability. (26) It follows from this presumption that when young...